How to Dismiss a Restraining Order in New Jersey
HOW TO DISMISS A RESTRAINING ORDER IN HUDSON COUNTY
Our Jersey City restraining order lawyers have prospective clients contact us all the time who have had a restraining order filed against them and are now interested in getting it dismissed and taken off their records. Your options on a dismissal often directly depend on where you are in the restraining order process. For instance, was the restraining just recently filed and in a temporary status right now while you await a final hearing? Did you just recently lose the restraining order hearing and have final restraining order placed against you? Or do you have an old final restraining order that was placed against you years ago? This article addresses the answers to those questions and gives you a step by step breakdown as to how we can challenge and help clients dismiss restraining orders no matter where you stand in the above timeline.
CAN A PERMANENT RESTRAINING ORDER BE LIFTED?
Once a restraining order has been filed against you there are only a few ways it can be dropped.
- Plaintiff Drops The Restraining Order – The easiest way is if the alleged victim just decides to drop his or her restraining order against you because they are no longer in fear of their safety. However, we rarely come across these situations especially since the clients that often hire us to help them are not this fortunate and have come to us because they no longer want to be labeled a “domestic abuser”.
- Win The FRO Hearing – Secondly, the restraining order can be dismissed is if you are able to convince a judge at the final hearing that the allegations are false and there was no domestic violence or that the restraining order would not be necessary for the plaintiff’s protection.
- Appeal the FRO – If you lose at the restraining order hearing and final restraining order is placed against you, you have the right to appeal the Superior Court Judge’s ruling to the Appellate Division if you believe the judge erred in his or her determination and findings based on the evidence presented. If the Appellate Division agrees then the restraining order can be overturned.
- File A Motion To Vacate – Lastly, what happens if the first 3 options don’t work? You have the ability to file a motion to vacate the old restraining order based on a “substantial change of circumstances” and showing that the restraining order is no longer necessary.
CAN I EXPUNGE A FINAL RESTRAINING ORDER?
Unfortunately the answer is No – because unlike criminal charges, a Final Restraining Order cannot be wiped from your record with an Expungement – instead if left untouched it will ordinarily remain with you for the rest of your life. This creates a big problem for many of my clients who come to us for help after a final restraining order has been entered against them because the court found an act of domestic violence took place such as Simple Assault, Harassment, Terroristic Threats, Stalking or even Criminal Mischief. Restraining orders, by their very nature, are stigmas and act as ugly reminders of a broken marriage or bad relationship. A restraining order can even show up on background checks which can hinder your ability to secure a good job and prevent you from buying or possessing firearms in the future. Furthermore, if the victim claims that you have contacted them against the rules of the restraining order, you will be arrested for Violation of the Restraining Order which is actual criminal offense. However, the good news is that to many people’s surprise, this does not mean that you are helpless. Under the law you may actually file a motion for dismissal of a Final Restraining Order in the Superior Court and have a new hearing where a judge can review the facts of the case and determine whether the original restraining order is still necessary.
FACTORS THE COURT MUST CONSIDER TO DISMISS AN OLD RESTRAINING ORDER
There are a number of factors that the Superior Court Judge must consider when determining whether or not to dismiss your old restraining. Restraining order lawyers commonly refer to this list of factors as the “Carfagno Factors” based on a case called Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995) which created a list of eleven factors. These factors include the following:
(1) whether the victim (plaintiff) will consent to vacate to lift the restraining order;
(2) whether the victim claims to still fear the defendant and if so, whether that fear is reasonable;
(3) the nature of the relationship between the parties today (for instance do they still live close by, do they have children in common and have to see each other or speak to each other?);
(4) have there been any documented violations of the restraining order and, if so, what was the result;
(5) did the defendant have involvement with drug or alcohol abuse and, if so, have those issues been properly addressed;
(6) does the defendant have any other documented acts of (domestic) violence against the plaintiff or other persons;
(7) whether the defendant has engaged in domestic violence counseling;
(8) the age and health of the defendant;
(9) is the victim acting in good faith when opposing the defendant’s request;
(10) has any other state entered a restraining order protecting the victim from the defendant; and
(11) any other relevant factors brought to the Court’s attention by either party.
After hearing from both sides, the Court will conduct a qualitative analysis rather than a quantitative analysis of the above factors. This means that you could have 7 factors in your favor and 4 factors against you but still lose if the Court finds that those 4 factors hold more weight that the other 7 combined. This is why it is important to have an experienced New Jersey restraining order lawyer put forth a convincing and persuasive argument to the Court based on applicable law that is in your favor.
NEED HELP GETTING A RESTRAINING ORDER OFF YOUR RECORD? CONTACT OUR OFFICE TODAY FOR A FREE CONSULTATION
If you are seeking to vacate a final restraining order in New Jersey, then you must satisfy a three-part test established by the Appellate Division in order to gain dismissal of the FRO. Although there is no set timeline to file, the court normally considers a period of at least one year as the unwritten rule before they will entertain a motion to dismiss. The petition to vacate the FRO should always be filed with the Family Superior Court Judge who originally heard the case and entered the restraining order. In most cases when motions are brought years later and the judge is no longer available, the transcripts and paperwork from the original FRO hearing must be tracked down and provided to the court so the new judge can review the case prior to hearing a motion to dismiss. The process of dismissing of a final restraining order is tough and complicated and often requires an experienced domestic violence lawyer to file motions, briefs, strategize, and argue the merits before a Superior Court Judge. At William Proetta Criminal Law we represent clients to vacate a final restraining order in Hudson County and throughout New Jersey. Contact our office at (201) 793-8018 for a free consultation with an experienced Jersey City restraining order lawyer.