Is it possible to dissolve a final restraining order in New Jersey?
Restraining Order and Domestic Violence Attorneys serving clients in Woodland Park, Wayne, Paterson and across Passaic County and Northern, NJ.
Domestic violence is a subject that is taken very seriously by courts and law enforcement. The 1981 Prevention of Domestic Violence Act was one of the first pieces of legislation that proactively addressed this topic. This act streamlined the process of gaining a permanent restraining order against an aggressor accused of domestic violence. As a result and by design, it is not easy to dissolve a final restraining order in New Jersey. The PODVA makes all restraining orders final and includes no ‘sunset provision’ that would allow the order to dissolve after a certain period of time. In fact, the only way to dissolve a restraining order in New Jersey is by court order.
Victims Consent to Dissolution
As stated, dissolving a final restraining order is by no means easy. However, the most important factor in dissolving a restraining order is for the victim to consent to its dissolution. The victim must go to Family Intake and make a formal request for the order be lifted. The court will screen the victim carefully in order to determine if they are acting of their own volition, or if they are being coerced or threatened into making the request. Moreover, the victim must be notified of their rights and be completely informed about what the lifting of the order will mean to them. If the court finds the victim to be acting independently and in their own best interests the court may lift the order.
Should I Give Consent to Dissolve an FRO in Passaic County NJ
Should the victim not give consent, it falls on the defendant to make a motion in family court in order to dissolve the order. The judge will review the full record of the original domestic violence hearing, and then determine if the request should be granted. The judge must consider the following among other factors:
- The consent and feelings of the victim
- The good faith of the victim
- The objective fear the victim may have of the defendant (It is important to note that ‘objective fear’ is not the same thing as an individual’s ‘subjective fear’. This standard is what a reasonable victim would experience under the same circumstances.)
- The nature and current relationship of the parties’ (This can address questions such as; Do the parties have children together? Have they re-married? Are they currently living in areas that are more geographically distant than before?)
- Contempt convictions the defendant may have for violating the restraining order
- Alcohol or drug use
- Any violent acts committed by the defendant
- Any domestic violence counseling the defendant may have participated in
- The defendant’s age and health
- The existence of other restraining orders in other jurisdictions
- Any other factors the court may deem relevant
Court Hearing for Testimony and Documentary Evidence Before the Judge Will Rule
If the court finds good cause to dismiss the final restraining order, the court will order a hearing, where the involved parties will be given an opportunity to testify, present and cross-examine witnesses as well as enter any documentary evidence. Based on the evidence presented at this hearing, the judge will determine whether or not to dissolve the final restraining order. However, it is important to note that even if a final restraining order is dissolved, the original domestic violence order will still be on the record, but the restraining order itself will no longer be in effect.
What to consider as a victim before agreeing to dissolve a final restraining order
If there has been a final restraining order put into place it is safe to say it was for a good reason. Both times and people change. It may be the case that a formerly contentious relationship may have changed. However, before agreeing to lift any restraining order your primary consideration should be your own safety. You must be confident that no further dangers of violence or harassment exist.
If you are the victim named in a protective order or the parent or guardian of a victim named in a protective order, you may request the court modify an existing protective order by removing some or all of its conditions. Due to the fact that this is a complicated process, it is in your best interest to hire an experienced criminal defense lawyer if you are attempting to have a final restraining order modified or terminated.
Contact a Passaic County New Jersey Domestic Violence Attorney Today
At the law offices of Del Sardo & Montanari, our team of law professionals have extensive experience representing victims of Domestic Violence and helped protect the rights and future of many clients in Woodland Park, Wayne, Paterson and across Passaic County and Northern, NJ.
If you or someone you love needs legal representation, do not hesitate to speak with one of our family law attorneys regarding your case. Call our Little Falls office at (973) 233-4396 today or contact us online for a free consultation.