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In family law cases where there are issues of domestic violence, there are generally two options available to defendants and victims. First, there is the standard final restraining order, entered under the New Jersey Prevention of Domestic Violence Act. Or, parties can enter into a civil restraining order, which prevents all forms of communication between the parties. There are significant differences between the two, and each offers its own set of pros and cons.
Downsides to Obtaining a Civil Restraining OrderThis is not an emergency motion. In fact, it can often take several weeks to get the motion in front of a judge. Additionally, any relief that is granted will not include jail time. While the civil restraining order will keep the spouses away from each other, it has one significant difference - if the defendant violates the terms of this order, they cannot be immediately arrested. Under a domestic violence restraining order, if someone violates the terms of the order and is convicted of doing so twice, there is an automatic, mandatory jail sentence of 30 days minimum, no matter what. Violations of a civil restraining order are pursued in civil court, usually with requests for financial damages. Domestic violence restraining orders have additional prohibitions – there can be no contact whatsoever with the victim, and any firearms the defendant has will be seized.
Benefits of Obtaining a Civil Restraining OrderThe best thing about a civil restraining order is that they can be agreed upon – meaning that if the plaintiff has a weak case for a final restraining order, they will at least get some protection instead of a full denial of a restraining order. At the same time, defendants might not want to get a final domestic violence restraining order lodged against them, and so are willing to negotiate to get the civil restraining order instead, which is less onerous.
Also, defendants do not face the same kinds of collateral consequences that a final domestic violence restraining order has. Having a final domestic restraining order on their record can affect their career. For example, if someone is in law enforcement, or is a medical professional or teacher, a final domestic violence restraining order can cost them their job. The defendant will also be treated with heightened scrutiny at places like airports for the rest of their lives, and they will forever be treated with more suspicion. A civil restraining order will not carry this burden.
However, to get a civil restraining order, the defendant will usually have to give something up in exchange, like having to leave the marital residence or conceding temporary residential custody of their children. However, if there are children involved, and they are dependent upon both parents being gainfully employed, obtaining a civil restraining order instead can be an attractive option to both parties.
Even though violating this kind of restraining order is not a criminal offense, there is nothing to prevent the victim from filing for a new domestic violence restraining order if the defendant commits a new act. And of course, violations of the civil restraining order will serve only to demonstrate that there is a pattern of domestic abuse, which will strengthen any application to the court for a final domestic violence restraining order.
How Will I Know if a Civil Restraining Order is the Right Option for me?You will need to speak with an attorney who is experienced in domestic violence and family law matters. You should never enter into an agreement for a civil restraining order without obtaining competent counsel.
If you are the victim, you will need to understand that by entering into an agreement to get a civil restraining order, you are giving up a lot of the protections that would otherwise be afforded to you under the Domestic Violence Protection Act. If this was a one-time occurrence, a civil restraining order might be fine and serve as a chance for both parties to cool off. However, if the abuse has been long-standing and increasingly violent, a civil restraining order might not have enough ‘teeth’ to protect you in the future. In any case, your lawyer will be able to assess the strength of evidence in your case to ascertain whether a final restraining order is preferable to the alternative.
If you are the accused, then your lawyer will need to educate and advise you about the risks of not asking for a civil restraining order. He or she also need to emphasize that, even though there is no jail time associated with it, civil restraining order it is still an enforceable order of the court and carries risks and punishment if you violate it. Additionally, by negotiating for a civil restraining order, the defendant will more than likely be giving up some leverage in their family law case. So, by leaving the marital residence, or giving up temporary custody of their child, this could have a negative impact on any custody issues down the line in the accompanying family law matter. Of course, if a final restraining order is entered against you, this will have even more of a severe impact. A competent lawyer will be able to help you determine the best course of action based on the particular circumstances of your case.
If you are involved in a domestic violence matter, whether the victim or the defendant, and you have questions about the options available to you, get in touch with the Law Offices of Peter Van Aulen for a consultation today, at 201-845-7400.