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Defending Against a Restraining Order in New Jersey

Experienced Defense Lawyers Fighting Requests for Restraining Orders in New Jersey

If someone is seeking a restraining order against you (or has already obtained a temporary restraining order), it is important that you speak with a lawyer promptly. Having a restraining order entered against you can have long-term consequences while inadvertently violating a restraining order can bring about a whole new set of issues.

In restraining order cases, the complainant (the person seeking the restraining order) often has the upper hand. New Jersey’s restraining order laws are designed to ensure that victims of sexual assault and domestic violence get the protection they need as quickly and easily as possible. Unfortunately, this makes it easy for alleged victims to obtain unwarranted restraining orders as well. At Helmer, Conley & Kasselman, P.A., we have significant experience defending clients against restraining orders under all circumstances, and we can use this experience to protect you.

Why You Need to Know the Difference Between Types of Restraining Orders

When facing a potential restraining order, it is important to ensure that you have a clear understanding of your situation. Depending on the nature of the allegations against you and the current status of your case, you may need to use various defenses in order to avoid unjustified restrictions and other unnecessary consequences.

The first thing to understand is that there are two main types of restraining orders in New Jersey: (i) temporary restraining orders (TROs) and (ii) final restraining orders (FROs). When someone seeks a TRO against you, you aren’t necessarily entitled to a hearing. However, before a judge can enter a FRO against you, you must be given the opportunity to present a defense (although you can lose or “waive” this opportunity by failing to appear).

The second important thing you need to know is that while restraining order cases are civil proceedings, efforts to obtain a restraining order will often lead to criminal allegations. So, when defending against a restraining order, it is critical that you build your defense with the possibility of facing criminal charges in mind.

5 Important Facts to Know if Facing a Request for a Final Restraining Order

Let’s say someone (i.e., a former partner) is seeking a final restraining order against you. What do you need to know in order to defend yourself effectively? Here are five key facts about facing a request for a final restraining order in New Jersey:

1. The Complainant Must Prove the Need for a Final Restraining Order “By a Preponderance of the Evidence”

Since restraining order cases are civil proceedings, it is up to the complainant to prove that a final restraining order is necessary. However, rather than meeting the criminal standard of “beyond a reasonable doubt,” the complainant only has to prove the need for a restraining order “by a preponderance of the evidence.”

Under this standard, the complainant must simply establish that it is “more likely than not” that a restraining order is necessary. If the judge is more than 50 percent convinced by the complainant’s case, then he or she must grant the restraining order under New Jersey law.

2. The Complainant Must Prove Three Key Elements to Secure a Final Restraining Order

So, we’ve established that the complainant must prove the need for a final restraining order “by a preponderance of the evidence.” But, what exactly is it that the complainant needs to prove (and that you need to defend against)? In cases involving allegations of domestic violence, complainants must prove three key elements:

• A Recent Act of Domestic Violence – The complainant must prove that he or she is seeking a restraining order based on a recent act of domestic violence. This could be an assault, harassment, criminal restraint, stalking, or any other form of domestic violence as outlined in the New Jersey Prevention of Domestic Violence Act (PDVA).  
• A Prior History of Domestic Violence – In most cases, in addition to establishing a specific recent act of domestic violence, claimants must establish a prior history of domestic violence as well. The extent of the history necessary generally depends on the specific facts and allegations involved.
• The Need for a Restraining Order to Protect the Complainant – To establish the need for a restraining order, the complainant must show that a reasonable person would be afraid for his or her safety under the circumstances presented.

If your lawyer can successfully challenge any one (or more) of these elements, then you should be able to avoid a final restraining order.

3. Complainants Can Use Several Forms of Evidence to Obtain a Final Restraining Order

When seeking final restraining orders, claimants can use various forms of evidence to meet their burden of proof. On the same token, alleged attackers and abusers can use these same forms of evidence in their defense. Some examples of types of evidence commonly used in New Jersey restraining order cases include:

• Police reports
• Text messages
• Voicemails
• Emails
• Medical records
• Photos of physical injuries or property damage
• Witness testimony

4. You Can (and Should) Hire a Lawyer, But You Are Not Entitled to a Public Defender

Given the risk of an unfavorable outcome and the consequences of having a final restraining order entered against you, it is strongly in your best interests to hire a lawyer. But, since restraining order cases are civil proceedings, you are not entitled to a public defender.

5. Regardless of the Outcome of Your Restraining Order Case, You Could Still Face Criminal Charges

Finally, as mentioned above, it is important not to overlook the very real risk that you could face criminal charges as a result of the allegations against you. This is true even if the complainant fails to meet his or her burden of proof in your civil restraining order case. Our lawyers can help you understand your situation, and in addition to handling your restraining order case, we can represent you in criminal court, if necessary.

Speak With a Restraining Order Defense Lawyer Before It’s Too Late

If you need to defend against a request for a restraining order in New Jersey, we encourage you to contact us promptly so we can fight for your rights. Call 877-435-6371 or contact us online to speak with a lawyer in confidence as soon as possible.