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

What Does My Lawyer Need To Prove To Get A Final Restraining Order in New Jersey?

          Once you have obtained a Temporary Restraining Order from a Municipal Court judge or from The Superior Court of New Jersey, a hearing is set (typically within 5-10 days) to determine if a Final Restraining Order is necessary.  Regardless of whether we are the lawyer representing the plaintiff or the defendant, the attorneys at our law firm know that what must first be proven was an incident of domestic violence occurred on the date stated on the Temporary Retaining Order.  Then if so proven, the court must evaluate as to the existence of prior incidents of domestic violence.  If one of our lawyers seeks to successfully prosecute or defend a client in a domestic violence trial, both attorneys and the judge know that these two things must be proven and the judge must clearly state why they made a decision that they made.  In the following case, a dismissal of a Temporary Retaining Order was reversed by the N.J. Appellate Division because these two factors had not been proven and the judge failed to state their findings of fact and law on the record.

            In R.M. v. K.E.L., the parties dated for seven years but never married or lived together.  On July 5, 2016, the parties filed temporary restraining orders (“TRO”) against each other.  At the trial on July 20, 2016, both of the parties testified.  K.E.L. testified that the parties were staying at a hotel when R.M. accused K.E.L. of stealing money from her.  He also testified that R.M. accused him of making phone calls to prostitutes before physically attacking him.  The physical attack included kicking, scratching and punching.  K.E.L. also testified that R.M. threatened to push him out of the window of the hotel room.  When R.M. testified, she denied punching K.E.L.  She also stated that both parties are jealous people and often argue.  R.M. did not claim that K.E.L. abused her on July 5, 2016; however, she testified to an incident that occurred on year earlier.  R.M. stated that she broke a tooth when K.E.L. threw her out of the car, but she did not want to testify, so she did not press charges. 

          The judge of the Superior Court of New Jersey Family Part asked the parties if they could keep their distance or if a final restraining order (“FRO”) was necessary.  In response, both parties stated that the police wanted them to file for restraining orders.  R.M. also stated that she needed an FRO for her mother since K.E.L dislikes her mother and has said terrible things to her.  The court granted FROs to both parties.  The judge stated that he believed that both parties have committed acts of domestic violence against each other throughout the years.  The judge further stated that the parties’ relationship was abuse and that the parties needed to focus on themselves. 

          On appeal, K.E.L. argued that the lower court was wrong to grant the FRO against him without finding that he committed the necessary elements to find domestic violence.  Specifically, K.E.L. argued that the court erroneously granted the FRO without finding that K.E.L. committed a predicate act, and because R.M. is not in danger of future harm.  The New Jersey Appellate Division stated that it ordinarily refers to the lower court’s factual and legal findings.  Generally, the lower court’s decision is reversed only when it was unsupported by credible and reliable evidence.  Furthermore, a lower court’s decision must be reversed when its findings were clearly mistaken and incorrect. 

          The Appellate Division explained that the lower court must make two determinations, based on Silver v. Silver, at an FRO hearing.  The first prong of the Silver test is whether the person seeking the FRO has proven that an act of domestic violence was committed.  The second prong is whether an FRO is needed to protect the person seeking the FRO from further harm.  The Appellate Division noted that one of fourteen crimes and offenses listed under N.J.S.A. 2C:25-19(a) must be shown to satisfy the first prong of the Silver test.  Some of the crimes and offenses listed include homicide, assault, criminal mischief, burglary, and harassment, among others.  The court further noted that factors are used, such as evidence of imminent danger and a history of domestic violence, to satisfy the second prong of the Silver test. 

          The Appellate Division held that the lower court did not adequately analyze the first prong of the Silver test.  It stated that the lower court did not specify which act of domestic violence the parties committed against each other, but simply stated that acts of domestic violence were probably committed.  Also, the Appellate Division found that the lower court did not establish a factual basis for the incident on July 5, 2016.  Similarly, the court held that the lower court did not properly analyze the second prong of the Silver test.  The Appellate Division reasoned that the lower court’s conclusion that eventually one of the parties would get hurt was not sufficient to determine that an FRO was needed to protect from future harm.  Also, the Appellate Division noted that R.M. stated that her mother needed the FRO, but it was unclear if R.M. lived with her mother.  Therefore, the Appellate Division concluded that the lower court did not make the proper determinations required by the two-prong test of Silver.  Ultimately, the Appellate Division reversed and remanded the decision of the lower court.

          The retraining order lawyers at our law firm are all experienced in New Kersey’s Prevention of Domestic Violence Act.  Please contact our office today.