May I have A Final Restraining Order Lifted By A Judge In New Jersey?

May I have A Final Restraining Order Lifted By A Judge In New Jersey?

Yes. The attorneys at our law firm located in East Brunswick, New Jersey, have handled many applications to the Family Part of the Superior Court of New Jersey to have a Final Restraining Order vacated on behalf of our client. All told, our lawyers need to prove that the defendant no longer fears our client. The case below illustrates how a New Jersey Family Court handles these types of motions.

In J.R. v. Y.L., the parties were involved in a romantic relationship and lived together for four years. The parties had one child together during their relationship. J.R. moved out in February 2012, and the parties shared joint legal and residential custody of their daughter, meaning the parties’ daughter lived with both parents and that the parties made important decisions regarding their daughter together. The parties followed a parenting time schedule that included custody exchanges on a weekly basis at the Monmouth County Courthouse.

On November 9, 2012, J.R. obtained a final restraining order against Y.L. J.R. claimed that incidents of domestic violence occurred while the parties lived together and after J.R. moved out. J.R. testified that Y.L. stalked and assaulted him on two separate occasions, one of which occurred in the police station during a custody exchange of the parties’ daughter. The final restraining order hearing was rescheduled twice at Y.L.’s request, but when Y.L. did not appear at the hearing, a final restraining order was entered against her. Y.L. then filed two motions for reconsideration over the next two years. The Superior Court of New Jersey Family Part denied both of Y.L.’s motions for reconsideration because Y.L. gave contradictory testimony during the motions and claimed that J.R. committed acts of domestic violence against her. After Y.L.’s motions for reconsideration were denied, she filed four motions with four different judges to remove the final restraining order. The final restraining order was removed on December 19, 2014. J.R.’s first appeal followed shortly after.

J.R. claimed that Y.L. showed up to J.R.’s house unannounced on two occasions in November and December 2015 after the final restraining order was removed. Initially, J.R. said Y.L. had no reason to show up to his house, but he later stated that Y.L. was dropping off their daughter on an unscheduled day. J.R. stated that he felt uncomfortable having Y.L. showing up to his home unannounced, even though there was no contact between the parties. The only contact the parties have had since December 2015 has been through email and only in regard to the parties’ daughter. J.R. also stated that Y.L. suffers from bipolar disorder and often goes off her medication. J.R. feared that Y.L. posed a danger to him if the custody litigation did not go in Y.L.’s favor. Y.L. stated that J.R. is not afraid of her and that there was no need for a restraining order. Y.L. explained that she dropped off the parties’ daughter unannounced because Y.L. was caring for her sick mother and that sometimes J.R.’s emails bounced back. Furthermore, Y.L. stated that the parties had been using locations other than the courthouse to exchange custody of their daughter since December 2014 after the final restraining order was removed. Y.L. stated that J.R. was mentally, emotionally, and physically abusive toward her and her children. Y.L. has since gotten married, had a baby, and undergone counseling for domestic violence. Y.L. believed J.R.’s issues were not about domestic violence, but really about custody.

In removing the final restraining order, the trial judge applied the Carfagno factors and noted that the parties were communicating with no issues. Additionally, the judge noted that the issues raised seemed to demonstrate an arising custody battle. The judge focused on the good faith of the victim as well as the victim’s alleged fear, but ultimately decided the final restraining order was not necessary to protect J.R. from future harm. J.R. appealed the trial court’s decision.

On appeal, J.R. argued that the trial court judge did not make any factual findings regarding the decision not to reinstate the final restraining order. Furthermore, J.R. argued that the judge failed to determine the credibility of the parties’ testimony. The New Jersey Appellate Division stated that it does not reverse a trial court’s decision when the decision was supported by adequate and substantial evidence. Additionally, the Appellate Division gives great deference to the trial court when dealing with family matters because of the trial court’s expertise in the area. The Appellate Division stated that giving deference is especially important when the credibility of testimony is involved. The Appellate Division also noted that a final restraining order may be removed upon a showing of good cause, which is based on a substantial change in circumstances since the final restraining order was entered. The court indicated that the primary focus when determining to remove a final restraining order is the safety of the victim under the totality of the circumstances.

The Appellate Division stated that there are eleven factors under Carfagno that the trial court should consider when evaluating good cause. The Carfagno factors include: whether the victim agreed to remove the order; whether the victim legitimately fears the abuser; the parties’ relationship currently; if the abuser violated the restraining order; whether the abuser has a substance abuse problem; whether the abuser has committed other violent acts; whether the abuser sought counseling; the health and age of the abuser; the good faith of the victim in fighting to keep the restraining order; whether the abuser has other restraining orders against them; and any other relevant facts the court finds relevant. The Appellate Division also stated that the trial court must look to the victim’s objective, not subjective, fear of the abuser. In order to determine objective fear, the court must determine the fear of a reasonable victim in a similar situation. Additionally, the trial court must look at the history of domestic violence under the totality of the circumstances.

The Appellate Division agreed with the trial court and affirmed its decision. The Appellate Division reasoned that Y.L. showed a substantial change in circumstances that warranted dismissing the final restraining order. Y.L. demonstrated that she had sought counseling and moved on from the relationship with J.R. Also, the Appellate Division reasoned that J.R.’s fear was not objectively reasonable, since the court found J.R. was just trying to use the restraining order against Y.L. in the parties’ custody litigation. Furthermore, the Appellate Division found that the trial court’s decision was supported by substantial and adequate evidence.

Our firm stands ready to assist you if you are dealing with a restraining order.

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