Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

How Do I Have A Final Restraining Order Vacated?

According to New Jersey Statute 2C:25-29(d), a final restraining order can be vacated or modified upon a showing of good cause. To determine good cause, the New Jersey Appellate Division adopted a list of factors for lawyers and judges alike in the 1998 case of Kanaszka v. Kunen, called the Carfagno factors, including: if the victim consents to having the final restraining order vacated; how fearful the victim of is of the defendant; the present day relationship of the litigants; the amount of contempt convictions for order violations; if the defendant abuses drugs or alcohol; if the defendant was involved in other violent altercations; if the defendant tried counseling; the defendant’s health and age; whether the victim is opposing the termination request in good faith; if any other restraining order has been entered against the defendant; and any other factors the court may deem relevant.  The party requesting the final restraining order must meet the burden of proving a prima facie showing of good cause. Only after that will the court determine the existence of any disputes of material fact that necessitate a plenary hearing. The attorneys at my law firm are all experienced in the field of domestic violence and, like any good lawyer, we are sure to understand all New Jersey case law relevant to the case at hand. 

In the recent New Jersey Appellate Division case of B.R. v. J.A., J.A. appealed an order dated October 2, 2014, that denied his motion to vacate a final restraining order entered against him under the Prevention of Domestic Violence Act, N.J.S.A 2C:25-17 to -35.

On March 24, 2004, a trial court entered a final restraining order that stated J.A.: could not have any contract with B.R. or her family; could not go to B.R.’s house or place of work; and could not possess firearms. Ten years later, J.A. filed a motion that requested the court to vacate the final restraining order. He based his motion on the fact that he had completed probation, and had not had any communication or contact with B.R. during the past ten years. The motion date was adjourned, or rescheduled, and in that time J.A. hired an attorney who filed a certification, that further argued that now J.A. had a stable job as a gasoline tanker driver, was married, and had four children.

Only J.A. and his attorney were present at the October 3, 2014 hearing. A new judge, unfamiliar with the events of the first motion date, allowed the clerk, who was at the first motion hearing, to speak. The clerk alleged that on the last court date, B.R. was “very upset, and crying and shaking and expressed her concern not to vacate the restraining order.” J.A.’s attorney opposed the court’s dependence on the clerk’s unsworn testimony, and the fact that the court made a decision before allowing him to cross-examine B.R. The judge merely listened to a recording of the September 9 conference and denied J.A.’s motion, stating, “that playback speaks for itself.” The judge found that J.A. failed to show good cause and a change of circumstance required by New Jersey Statute 2C:25-29(d). Nor did he meet the Carfagno factors that govern a dismissal of a final restraining order.

Family Part judges must make findings of fact to support their orders. This judge found that B.R. was afraid of J.A. and did not give her consent to vacate the final restraining order. Moreover, J.A. had already violated the final restraining order many years ago, and never attended counseling, even though he was never formally ordered to do so. Despite these facts, the judge also found that there were no other restraining orders against J.A., nor did he have any drug or alcohol abuse problems. Furthermore, he had not been in any violent altercations with other people. The judge reviewed the transcript and found that the incident in question was “more of an alleged harassment, stalking kind of allegation.” Still, the judge concluded B.R. was acting in good faith. In coming to his decision, the judge placed great weight on B.R.’s good faith, her lack of consent in vacating the final restraining order, and her fear of J.A. The judge also gave great weight to the clerk’s description of B.R.’s appearance and actions.

The judge made specific note of many incidents from 1998 to 2003, including when J.A. followed her to the bus, slapped her, confronted her at her place of employment, and grabbed her hand and took her phone. More seriously, he also threatened to break her jaw, told her to “watch herself” because he “had someone to beat her up” and he was “going to get her.” On top of all that, J.A. got convicted of contempt, not once but twice, first in 2004 and then again in 2005. Based on these facts the judge concluded that B.R. feared J.A., both objectively and subjectively. The judge stated that it was not necessary to conduct additional testimony or a cross-examination of B.R. to determine if she was truly fearful of J.A. Therefore, the judge stated that there was no substantive evidence to challenge B.R.’s credibility as to J.A.’s claim that she opposed vacating the final restraining order in bad faith. As such, the judge denied J.A. a chance to cross-examine B.R.

J.A. appealed the order dated October 3, 2014, and argued that: (1) the judge inappropriately relied on the court clerk’s recollection of the past proceeding, and (2) there was indeed good cause to vacate the final restraining order against him.

The New Jersey Appellate Division explained that according to New Jersey Statute 2C:25-29(d), a final restraining order can be vacated or modified upon a showing of good cause. However, this can only happen if the judge who vacates or modifies the final restraining order is the same one that entered the order in the first place, or alternatively has a complete record of the hearing that the order stemmed from. To determine good cause, the New Jersey Appellate division adopted a list of factors in the 1998 case of Kanaszka v. Kunen, called the Carfagno factors. This non-exhaustive list of factors includes: if the victim consents to having the final restraining order vacated; how fearful the victim of is of the defendant; the present day relationship of the litigants; the amount of contempt convictions for order violations; if the defendant abuses drugs or alcohol; if the defendant was involved in other violent altercations; if the defendant tried counseling; the defendant’s health and age; whether the victim is opposing the termination request in good faith; if any other restraining order has been entered against the defendant; and any other factors the court may deem relevant.

In addition, the court also has to explore the past history of domestic violence between the litigants, in an effort to cognize the totality of the circumstances, and sufficiently evaluate the reasonableness of the victim’s fear. This can include consideration of incidents that may not have been testified to at the final hearing. The party requesting the final restraining order must meet the burden of proving a prima facie showing of good cause. Only after that will the court determine the existence of any disputes of material fact that necessitate a plenary hearing.

The New Jersey Appellate Division noted that when reviewing the second Carfagno factor, the victim’s fear of the perpetrator, the proper test is if the victim’s fear is objective. Objective fear is defined as “fear which a reasonable victim similarly situated would have under the circumstance.” The requirement of objective fear is based on the idea that an injunctive order, or an order that compels a party to do or refrain from specific acts, should only be as long as reasonably required to protect the victim. A subjective standard of fear could broaden the length of the injunction, and might needlessly infringe on the rights of the defendant. Most importantly, the any motion to vacate a final restraining order must prove that circumstances have changed substantially since the final restraining order was entered, to the point where there is good cause for a dismissal.

In B.R. v. J.A., at the time of the hearing, the litigants did not have a relationship. In fact, they had not had any contact in over nine years. Nor was there any record of J.A. being involved in any violent incidents with other people, drugs or alcohol, or possession of firearms. Even though there were two past contempt convictions, they had occurred almost ten years ago. Now, J.A. is a married man and has four children. He drives a gasoline tanker for a living, and he claimed that having a final restraining order against him, prevented him from advancing his career.

The New Jersey Appellate Division noted that the judge based his decision that B.R. feared J.A. both objectively and subjectively, and that she was acting in good faith, on an audio recording of the September 9, 2014 conference. The appellate panel explained that since the judge did not see B.R.’s demeanor, and record showed that the parties had not had any contact since 2005, the questions of whether B.R.’s fear of J.A. was reasonable and objective, or if she was acting in good faith, were disputes of material fact. For these reasons, the New Jersey Appellate Division found that J.A. clearly proved a prima facie showing of good cause and changed circumstances that warranted a plenary hearing at the very least. For all these reasons the order denying J.A.’s motion to vacate the final restraining order was dismissed and a plenary hearing on the motion was ordered. 

If you seek to have a restraining order vacated, please contact my office today.