Final Restraining Orders – When Final Does Not Equate to Permanent

file00030973702My colleagues and I have previously written on the topic of Domestic Violence, Temporary Restraining Orders (TRO), and Final Rrestraining Orders (FRO).  Specifically, I have previously written on the subject matter of contempt proceedings where the Defendant in a domestic violence action can be held in contempt for violation of either a TRO or FRO.  This morning as I was reading through some of the unpublished Appellate Division cases, one caught my eye and I thought a follow up post would be both necessary and relevant.  The unpublished decision, titled W.E. v. J.P., was an appeal that came from a trial court decision in Ocean County and which was decided by the Appellate Division today.  As I previously warned in my post Contempt Proceedings – Consequences of Violating a Restraining Order, there are a number of things for a Defendant to be both aware of and concerned about.  On the flip side, however, a Defendant should also be sure to understand that a Final Restraining Order does not necessarily mean a permanent restraint, as there is statutory authority that allows for Final Restraining Orders to be dissolved or modified.

Pursuant to N.J.S.A. 2C:25-29(d): “Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.”  Looking at the statutory language there are several things of note to consider.  First, the sole requirement under the statute for the dissolution or modification of a restraining order is the showing of ‘good cause.’  Unfortunately, the statute does not further explain or expand upon the meaning of ‘good cause’ in this context.  Accordingly, we must turn to the case law, which we will do further below in this post.  Secondly, it is important to note that the judge who enters the restraining order must be the judge who considers an application for the dissolution or modification of that restraining order, with a minor exception set forth therein.  It appears from the statutory language that the preference would always be for the judge who entered the restraining order be the one who considers any modification or dissolution thereof, assuming they are available.  In the unfortunate situation where the judge  who entered the original restraining order is unable to hear a subsequent modification application, the judge who does in fact hear the modification application must have available the ‘complete record of the hearing or hearings on which the order was based.’  This is extremely important to note, as any application where the original judge is unavailable will require the additional time and expense of ensuring that a complete record is provided to that judge with the application.  I would note that where circumstances permit, it is likely a good idea to provide as complete of a record of the prior proceeding(s) regardless of which judge ultimately hears the application to ensure the most efficient and equitable resolution of the application.

While the case law does not necessarily define ‘good cause’ in this context, there is a published trial court decision, Carfagno v Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995), that sets forth a list of eleven (11) factors for any Court to consider when making a determination on a modification or dissolution of restraining order application.  That trial court decision, and the numerated factors set forth therein, were discussed and approved by the Appellate Division in the case Grover v. Terlaje, 370 N.J. Super. 400 (App. Div. 2005).  The factors set forth by the Honorable Thomas H. Dilts, J.S.C., are as follows:

  1. Whether the victim consented to lift the restraining order;
  2. Whether the victim fears the defendant;
  3. The nature of the relationship between the parties today;
  4. The number of times that the defendant has been convicted of contempt for violating the order;
  5. Whether the defendant has a continuing involvement with drug or alcohol abuse;
  6. Whether the defendant has been involved in other violent acts with other persons;
  7. Whether the defendant has engaged in counseling;
  8. The age and health of the defendant;
  9. Whether the victim is acting in good faith when opposing the defendant’s request;
  10. Whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and
  11. Other factors deemed relevant by the court.

For a full analysis and further insight into each of these factors, please read the full opinion in Carfagno v. Carfagno.  With that said, I would like to point out a few highlights that should be considered when bringing an application of this nature.  With regards to Factor #2 above, it is important to note that the Courts are to analyze fear as the objective fear which a reasonable victim similarly situated would have under the circumstances.  The Courts are NOT analyzing the subjective fear of that particular victim, as this would simply amount to a situation where the victim would always be 100% in control of whether or not a FRO could be dissolved or modified, which was not the intent of the Legislature.  With regards to Factor #9, it is important to note that the Courts are specifically tasked with making a determination as to the basis upon which a victim is seeking to object to this type of application.  As noted, the Courts must be aware of the instances where “one party to a divorce action abuses the Act to gain advantage in the underlying matrimonial action.”  This is worth noting because the victim can not merely object to an application for any reason and must have a good faith reason for doing so.

It is important to note that it will always be the Defendant’s burden of proof to show that there are changed circumstances that warrant a dissolution or modification of a restraining based upon the complete analysis of the Carfagno factors set forth above.  The attorneys at James P. Yudes, P.C., have a wealth of knowledge and experience dealing with all types of domestic violence matters and are both willing and able to assist you as needed.