Domestic Violence and Restraining Orders

By Peter Van Aulen, Esq.

In order for an individual to obtain a NJ Restraining Order against another under the New Jersey Domestic Violence Statute, there must be an act of Domestic Violence committed and that act of Domestic Violence must have caused the victim to fear for his or her safety and welfare.

Acts Which Constitute Domestic Violence in NJ

The New Jersey Domestic Violence statute defines an act of Domestic Violence as the occurrence of one or more of the following acts:

• Homicide
• Assault
• Terroristic Threats
• Kidnapping
• Criminal Restraint
• False Imprisonment
• Sexual Assault
• Criminal Sexual Contact
• Lewdness
• Criminal Mischief
• Burglary
• Criminal Trespass
• Harassment
• Stalking

Definition of Victim Under the NJ Domestic Violence Statute

In order to file under the Domestic Violence statute, you must qualify as a victim. A victim under the statute is defined as follows:

• Must be 18 years or older or an emancipated minor. However, there is no age requirement if the victim has a child in common or anticipates having a child in common with the defendant, if one of the parties is pregnant.
• Must have been subjected to Domestic Violence by a present household member, former household member, spouse, former spouse, boyfriend, former boyfriend, girlfriend or former girlfriend.

Relief Given Under a NJ Restraining Order

The principle relief for a victim of Domestic Violence under the statute is a Restraining Order. The relief a Restraining Order could provide is as follows:

• Prohibiting the defendant from the home of the victim.
• Prohibiting the defendant from the victim’s place of employment.
• Prohibiting the defendant from returning to the scene of the domestic violence.
• Prohibiting the defendant any form of contact or communication with the victim.
• Prohibiting the defendant from any form of contact or communication with any individuals named by the victim.
• Prohibiting the defendant from possessing any firearms or other weapons.
• Awarding the victim with custody of the children.
• Ordering the defendant to pay the victim support.
• Ordering a search for weapons at any location the Judge has reasonable cause to believe the weapons are located.
• Ordering the defendant to receive professional counseling
• Awarding the victim possession of the home.

The Granting of a Permanent NJ Restraining Order

The initial Restraining Order is temporary. The Court in approximately ten days will schedule a hearing to determine if a permanent order will be granted. At the hearing, the standard for proving the allegation of Domestic Violence is by a preponderance of the evidence. According to statute, the Court will consider but not be limited to the following factors:

• The previous history of Domestic Violence between the parties, including threats, harassment and physical abuse.
• The existence of immediate danger to person or property.
• The financial situation of the plaintiff and defendant.
• The best interests of the victim and any child.
• In determining custody and parenting time the protection of the victim's safety.
• The existence of a verifiable order of protection from another jurisdiction.

Both the defendant and the plaintiff have the right to have an attorney represent them during this hearing. Both parties have a lot at stake. A NJ Restraining Order might be necessary for the plaintiff’s protection. In regard to the defendant, having a Final Restraining Order entered against the defendant means that he or she will be fingerprinted and have a record of committing an act of Domestic Violence. This could affect certain professional licenses and employment. For these reasons, it is highly recommended that you have an experienced family law attorney represent you whether you are the plaintiff or the defendant when you are dealing with a NJ Restraining Order. Call Peter Van Aulen today at 201-845-7400 for a consultation.

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