If you are a victim of domestic violence, you may be able to get protection in the form of a temporary restraining order that can later become final. A restraining order is a civil order from the Family Part of the Superior Court. It prohibits your abuser from having any contact with you, including over the telephone, in person, or electronically. That means no phone calls, text messages, or e-mails.
Who qualifies for a domestic violence restraining order?
You can get a domestic violence restraining order if:
- You are or were married to the abuser.
- You share children with the abuser.
- One of you is pregnant.
- You are over 18 and are currently living with or previously lived with the abuser.
- Regardless of your age, you are having or did have a dating relationship with an abuser over the age of 18.
Also, to qualify for a temporary restraining order, the abuser must have done things that meet the definition of at least one the following crimes: harassment, assault, terroristic threats, criminal mischief, kidnapping, burglary, sexual assault, criminal sexual contact, false imprisonment, criminal restraint, criminal trespass, lewdness, or stalking.
When and where should I go to get a domestic violence restraining order?
It is always best to try to get a restraining order as soon as possible after an act of domestic violence has occurred. If you wait, you may have to explain to the court why you waited. Sometimes victims may wait because they do not know about restraining orders, or because they cannot get to a telephone or to a court. If you continue to live with the abuser after the act of domestic violence, a judge may decide that you are not really afraid and do not need a final restraining order.
You may seek a temporary restraining order at the police department 24 hours a day in the town where you live, where the act of domestic violence occurred, or where you are presently sheltered. Or you may visit the Superior Court (during business hours) in the county where you live, where the act of domestic violence occurred, or where you are presently sheltered.
What do I tell the judge?
It is important for you to give the Municipal Court judge, Superior Court judge, or hearing officer details about the most recent incident of domestic violence. This includes a description of threats, names you were called, or ways you were physically abused or inappropriately touched. If you are specific, your case will be stronger. You should also report any prior incidents of domestic violence between you and the abuser, giving at least three of the more recent and more severe incidents that you have experienced. This is important, even if you did not tell anyone about the prior domestic violence incidents. Tell the judge if you reported the incidents, if another person witnessed them, if you got medical treatment for injuries, or if someone took pictures of those incidents. Physical proof may help you prove your case.
What relief may I request in a temporary restraining order?
When requesting a temporary restraining order, you may request many types of relief along with protection, including the following:
- Physical custody of any children that you and the abuser have together. (The law presumes that a victim who gets a restraining order gets physical custody of the children.) You may also request that the abuser’s parenting time be suspended until after the final hearing.
- Possession of the home where you currently live (even if you are not the owner of the home or do not pay any of the bills).
- Possession of and keys for a vehicle (even if you are not the owner or do not pay bills for the car).
- Possession of any important documents relating to you or the children, such as passports, birth certificates, etc.
- Cash or other emergency support, such as payment of a mortgage and household bills.
If you are allowed to stay in the home, the abuser is not allowed to come to the home without police supervision until the final restraining order hearing. If you are granted a final restraining order, the abuser might be out of the home even longer.
After you provide all of this information to either a police officer or a staff member of the Superior Court domestic violence unit, they will create a five-page temporary restraining order. It is very important that you review this entire document to make sure it is correct. If anything has been left out or is not accurate, you must ask for it to be included or changed. After you sign the first page of this document, you will speak to either the municipal court judge (probably over the telephone) if you have gone to the police station or a domestic violence hearing officer or a judge (in person) if you have gone to the Superior Court. The judge or hearing officer will ask you to explain why you feel you need the order. You should repeat the information in the written document. After you answer the questions, the judge or hearing officer will decide whether or not to give you a temporary restraining order.
What happens after I get my temporary restraining order?
If you receive a temporary restraining order, you should keep it with you at all times. Make extra copies and keep one in your home, your car, and your purse, and give one to your local police. The court and/or police must try to immediately give the abuser notice by serving him/her with a copy of the order. Once the abuser has notice of the restraining order, the law prohibits him or her from having any contact with you.
How do I prepare for my final hearing?
As soon as you get your temporary restraining order, you should look for the date, time, and place of your final restraining order hearing, listed on page four of the restraining order. Before the hearing, think about what your testimony will be and what evidence you may have to prove your testimony.
What happens at the final hearing?
You must appear at the date, time, and place listed on your temporary restraining order for your final hearing. After you arrive at court, check in with the sheriff’s officer. State your name and tell the officer whether or not you will go forward with a hearing, if you have any witnesses, and if you need an interpreter. You may also tell the officer that you want to request an adjournment (a later court date) to gather more evidence or to try to get an attorney.
When it is time for your case to be heard, a court staff member, sheriff’s officer, or the judge will call your name. Go to the table and stand in front of the name plate marked “Plaintiff” until the judge tells you to be seated. In order to get a final restraining order, you must prove your case to the court by a preponderance (greater weight) of the evidence. You must prove that domestic violence occurred and that you need the protection of a final restraining order. You will do this through your testimony, the testimony of other witnesses, and through any physical evidence you present to the court. In your testimony, you should describe:
- What your relationship is to the defendant;
- The details about the current incident of domestic violence (the reason you came to court to get this restraining order);
- Any history of domestic violence (prior incidents) between you and the defendant; and
- Why you think you need protection from the defendant.
You also have the right to present evidence on your behalf. This may include photographs of injuries or damaged property, video or audio recordings, or telephone records. After you have shared all of the above with the court, both the judge and the defendant will be able to ask you questions about what you have said (cross-examine you). It is important to listen carefully and not to answer unless you fully understand the questions you are asked. If you are unsure about a question, ask that it be repeated. Once this questioning is over, you may present other witnesses to testify on your behalf and question them.
After you and your witnesses have testified and you have presented all of your evidence, the defendant will have the opportunity to present his or her version of events. The defendant does not have to tell the court anything but, if he or she does testify, you have the right to cross-examine the defendant. The defendant also has the right to present physical evidence and other witnesses. You will also have a chance to cross-examine these witnesses.
After the defendant is done presenting evidence, you may ask the court if you may respond to that evidence or testimony. This is called rebuttal testimony. At this time, you are only permitted to respond directly to new issues raised by the defendant, not go over issues you already explained.
After the plaintiff and defendant present their complete cases, the court will deliver its opinion. While the court is delivering its opinion, you are not supposed to speak. This is the time when the judge tells you what he or she did and did not believe. You will also learn if you will be receiving a final restraining order. If you do not get a final restraining order, the temporary restraining order will be dismissed and the defendant will be permitted to have contact with you or return to a home you shared. If the court grants you a final restraining order, you have the right to request that the relief already in the order remain permanent, as well as additional relief. This may include:
- A request that the court do a risk assessment. (This is especially important in situations where the defendant has been violent towards the children or abuses alcohol or drugs.) A risk assessment means that a member of the court staff will examine information and talk to you in order to determine whether or not to recommend that the defendant have unsupervised parenting time with the children.
- A request to remain in a home you and the defendant shared permanently or for a certain amount of time before you leave, or time to return to remove your belongings.
- Support for you. The court can order that a certain amount of money be taken out of the defendant’s pay check every week, or that he or she directly pay for a mortgage or household or hospital bills. It is a good idea to know how much money you will need before you go into court. If there are specific bills that must be paid—for example, to fix a damaged door or for prescriptions—bring those bills with you.
- Child support. When asking for child support, it is a good idea to bring pay stubs (yours and the defendant’s, if you have them), along with last year’s tax return, if available. This will help the court in determining the proper amount of child support.
- Specific custody and visitation arrangements. If a current custody order exists, the court will take that into consideration when making its decision, but certain provisions may have to change. For example, you should request a specific public place for pick-up and drop-off (such as the police station or a local fast food restaurant). It is important to have specific dates and times for parenting time, because the defendant may not have any contact with you.
What happens after I get a final restraining order?
A final restraining order restrains the defendant from having any contact with you (unless exceptions are made in order to communicate about your children). If the defendant has contact with you, you should call the police. The defendant can be arrested for a violation of the restraining order. If the defendant does not follow the parenting time or support provisions of the order, you should file a motion with the family court seeking to enforce that order.
Where can I go for more help?
If you are a victim seeking help with obtaining a final restraining order or any domestic violence issue, please contact Legal Services of New Jersey’s Domestic Violence Representation Project by calling LSNJ-LAW™, LSNJ’s statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529). (Outside of New Jersey, please call (732) 572-9100 and ask to be transferred to the hotline.)
This article originally appeared in the October 2008 issue of Looking Out for Your Legal Rights®.