Served with a Domestic Violence Restraining Order?
Being served with a domestic violence restraining order from a family member, spouse, or girlfriend or boyfriend can have devastating consequences on the emotions of the recipient.
The New Jersey Rules of Civil Procedure, Rule 5:7A, allows any person in a personal relationship with another person, who has committed an act of domestic violence to file a complaint for domestic violence.Once the party is served with a temporary restraining order (TRO), he or she cannot have any contact with the plaintiff-victim, including any named individuals listed on the TRO by the Judge.
All domestic violence complaints are heard in the Superior Court, Family Division, in the county in which the domestic violence allegedly occurred.Pursuant to New Jersey law neither the victim (plaintiff), or the alleged inflictor of the domestic violence (defendant), are entitled to court appointed lawyers because it is a civil matter, and not criminal.Therefore, each party must retain privately retained legal counsel.Defending a person accused of having committed domestic violence or pursing a domestic violence action on behalf of a plaintiff requires the experience of an attorney who is familiar with the court rules, applicable case law, and trial advocacy skills, specifically, the ability to effectively cross-examine the accuser or person committing the violence.
Unlike a criminal case the party seeking an order of domestic violence must sustain his or burden of proof only by preponderance of evidence, and not beyond a reasonable doubt such as the burden in a criminal case.
Acts of domestic violence can include, the obvious things such assault, rape, kidnapping, terroristic threats of physical violence, destruction of property, as well as more minor forms of domestic violence such as simple assault harassment, stalking and criminal trespass. Most domestic violence case our more of the former in which one parties claims that during an argument he or she was pushed or crabbed.In most cases there is little or no manifestation of any physical injuries on the person who alleges the domestic violence and in most cases it boils down to he said he said, and the judge hearing the testimony must decide which party, if any, are more credible.
Even if the judge finds that some domestic violence occurred the judge can nevertheless deny the FRO if the Judge determines that an order is not necessary to protect the parties from future actions of domestic violence.
Although in some cases the infliction of both physical and emotional harm on the victim is real and serious, often the filing of a domestic violence temporary restraining order or TRO is filed for malicious and false reasons and has nothing to do with domestic violence.Over and over again in practicing criminal law criminal and representing both victims and defendants in domestic violence actions and final restraining order (FRO) hearings in which one or both parties have simply lied about the alleged domestic violence.Often the reason for the false allegations is because one of the parties wants the other party to leave the martial home or apartment or home in which they are sharing. Another reason is that the person allegeding domestic violence simply wants to get the upper-hand in a pending or future divorce proceeds.
Once a domestic violence complaint is filed and a TRO is issued by either the Superior Court or Municipal Court Judge, the person filing the complaint (or alleged victim), immediately obtains possession of the martial home, apartment or dwelling in which the parties reside, and the defendant must immediately vacate the shared home or apartment.This of course can create severe hardship upon a defendant who sometimes in the middle of the night must leave his or her home with only the clothing on his back, not able to return for any clothing or personal effects until after the final restraining order hearing is heard by the Superior Court Judge.
Not only can the defendant be adjudicated has having engaged in domestic violence and a final restraining order issue by the judge, but the court can and will most likely order the victims attorneys fees paid, and any out-of-pocket losses that the victim might have suffered including medical bills, compensatory damages and even punitive damages depending on the severity of the domestic violence committed.
Even though a final order of domestic violence is civil in nature it can have devastating consequences on someone’s present employment and/or future employment.Additionally, it can have devastating consequences on people who are not citizens because it could be a bar to United States citizenship and even in some cases grounds for deportation depending on the specific facts of the case.
Under no situations should these matters be taken lightly and a person involved in this case must seek the immediate consultation and retention of an experienced attorney in handling these types of cases.Attorney Sanzone has successfully handled hundreds of these types of cases in practicing criminal defense in New Jersey.