New Jersey’s Prevention of Domestic Violence Act is one of the most complex areas of the law which is always a challenge even for the most experienced New Jersey Family Lawyer. Let’s explore the differences between a New Jersey Temporary Restraining Order and “Civil Restraints” as well as the pros and cons of each.
A Municipal Court Judge or a Judge of the Family Part, Superior Court of New Jersey, upon good cause to believe that the applicant is potentially in danger, may issue a Temporary Restraining Order. This forbids the defendant from any contact whatsoever with the “victim” until the matter is handled at the Superior Court of New Jersey level. Any and all firearms are immediately seized as well. Law enforcement immediately serves the defendant with the Temporary Restraining Order and advises them of their next Court date; a Final Restraining Order trial in the Family Part of the Superior Court of New Jersey.
Anytime between the service of the Temporary Restraining Order through the actual date of the Final Restraining Order hearing, the defendant may hire a NJ Domestic Violence attorney to try to settle the matter outside of Court. The end result of such an agreement in New Jersey is called Civil Restraints. Civil Restraints is a settlement between the parties which always requires the involvement and guidance of experienced New Jersey Family Attorneys. Civil Restraints and the settlements which they memorialize typically handle many issues which may exist between the parties. Usually, such issues address limited communications (if any) between the parties, financials matters and, when appropriate, any and all concerns involving the parties’ children . However, Civil Restraints do not have nearly the same powers nor protections than a Restraining Order provides to the victim. The obvious question becomes, “Why would anyone enter into Civil Restraints” Let’s continue.
First, if a family relies on the Defendant for support, a Final Restraining Order may cost them their job or even their entire career. Examples of such professions are people who work in law enforcement, the military, teachers and any other jobs where security checks are mandatory. Assuming the defendant is the “bread winner” of the family, the victim now faces a new challenge. If the victim truly fears the defendant, there is no decision to be made and I shall advise them to proceed to a trial and obtain a Final Restraining Order. However, if she believes that if the defendant was willing to remove himself from the home, then she may feel safe once they are no longer living under the same roof in that “pressure cooker,” then Civil Restraints may be the best way to go. This is especially true when children are involved as they obviously are the mercy of their parents for financial support.
Second, the victim, for various reasons, may have a “weak” case. Please be mindful that it is dramatically easier to obtain a New Jersey Temporary Restraining Order than a Final Restraining Order. In such a circumstance, I may discuss the Civil Restraint option with the victim as I may be able to negotiate a better settlement, including his agreeing to stay out of the home, obtaining financial support for my client as well as addressing all custody and parenting time issues. On the other side of the coin, a defendant, even facing a “weak” case, may be wise to take a “sure thing” by settling out of Court than taking the risk of a Final Restraining Order trial, where there are never any guarantees for the defendant no matter how “weak” the victims case may be, especially with an experienced New Jersey Family Lawyer by her side.
Third, when the victim has a “strong” case, they now has great leverage to negotiate the terms of a Civil Restrain scenario. This may allow the victim to gain an advantage if there may be a custody dispute in the immediate future. At a minimum, having one parent voluntarily granted even temporary residential custody to the victim may be a problem in a New Jersey child custody battle down the line. On the other end of the spectrum, a Final Restraining Order against the defendant may be fatal towards their ultimate request for even joint residential child custody.
All told, as the foregoing is terribly complex with so many legal angles to be leery of, it is absolutely essential to have an experienced NJ Domestic Violence lawyer by your side. If you are the victim, you must have an attorney who can determine whether you are a “candidate” for Civil Restraints or if you must have the protections of a Final Restraining Order. On the other side of the coin, the defendant must have a seasoned and savvy Family or New Jersey Divorce Attorney to protect them, be it a Final Restraining Order trial or negotiating a fair Civil Restraint situation in order to best protect them. At the Law Offices of Edward R. Weinstein, you will be rest assured that you shall receive the best guidance under any situation that may arise during this extremely difficult period of life.