Unlike a criminal case where a person is provided with lengthy due process, and if guilty receives probation and a monetary fine, a domestic violence hearing allows judges to issue far reaching orders. A domestic violence hearing is usually held within only ten (10) days of the filing of an ex parte complaint and temporary restraining order. After a hearing , NJSA 2C:25-29 (b) allows the Chancery Division, Family Part Judge to grant substantial relief to the complainant.
Among the relief the Court may gives is:
(1) An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act.
(2) An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties...
(3) An order providing for visitation...[ meaning the complainant obtains custody]
(4) An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence...
(6) An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim...
(7) An order restraining the defendant from making any communication likely to cause annoyance or alarm...
(8) An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members...
(9) An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, any identification documents, a key, and other personal effects.
(10) An order awarding emergent monetary relief to the victim and other dependents, if any. An ongoing obligation of support shall be determined at a later date pursuant to applicable law...²
(11) An Order awarding temporary custody of a minor child. The court shall presume that the best interests of the child shall be served by an award of custody to the non- abusive parent.
(12) An Order requiring that a law enforcement officer accompany either party to the residence to supervise the removal of personal belongings.
(13) An Order granting any other appropriate relief for the plaintiff and minor children
(14) An Order that the defendant report to the intake office of the Family Part for monitoring
(15) An Order prohibiting the defendant from possessing any firearm or weapon
A final order restraining a defendant shall be issued only on a specific finding of domestic violence or on a stipulation by a defendant to the commission of an act or acts of domestic violence as defined by the statute.
You need to go back to court and ask to see the court file. You need to look at the Final Restraining Order to see what findings that the judge made.
You may wish to file for a Carfango hearing.
Domestic violence final restraining orders entered in New Jersey are permanent. While in most other states, they are reviewable, renewable, or self-terminating after a certain period of time, in New Jersey they can only be dismissed or terminated upon an application to the court. The defendant (person against whom the restraining order was entered) must make an application (called a motion) to the Family Court seeking to have the restraining order vacated. These applications are commonly known now as requests for a Carfagno hearing, named after the 1995 case in which the New Jersey Supreme Court set forth the factors to be considered in determining whether such restraining orders should be vacated. There is also a statutory basis for such applications at N.J.S.A. 2C:25-29(d).
In Carfagno v. Carfagno, 288 N.J. Super., 424 (1995) the Supreme Court of New Jersey stated,
'Generally, a court may dissolve an injunction where there is “a change of circumstances [whereby] the continued enforcement of the injunctive process would be inequitable, oppressive, or unjust, or in contravention of the policy of the law.” Johnson & Johnson v. Weissbard, 11 N.J. 552,555 (1953). Id. at 433-434.'
The Supreme Court’s decision in Carfagno established the factors that the trial court must consider when deciding whether good cause exists to dissolve the final restraints entered pursuant to the Act for the Prevention of Domestic Violence.
- whether the victim consented to lift the restraining order;
- whether the victim fears the defendant;
- the nature of the relationship between the parties today;
- the number of times that the defendant has been convicted of contempt for violating the order;
- whether the defendant has a continuing involvement with drug or alcohol abuse;
- whether the defendant has been involved in other violent acts with other persons;
- whether the defendant has engaged in counseling;
- the age and health of the defendant;
- whether the victim is acting in good faith when opposing the defendant's request;
- whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and
- any other factors deemed relevant by the court.
If the defendant makes a basic showing in the application that there is a basis for the hearing, the court will grant a hearing at which the parties will have the right to testify, present other witnesses, cross examine witnesses, and present appropriate documentary evidence. This is the Carfagno hearing.
While most of the factors set forth in Carfagno are relatively straightforward and fact sensitive, it is likely that the judge is going to focus most heavily on factor (2), “whether the victim fears the defendant.” The judge, in the Carfagno case, spent significant time discussing the issue of whether to test the victim’s alleged fear of the defendant objectively or subjectively. In concluding that an objective standard must be used, the Carfagno court reasoned as follows:
The Legislature provided that final restraining orders may be dissolved upon good cause shown. N.J.S.A. 2C:25-29(d). The Legislature did not state that permission of the victim is required before the court can dissolve a final restraining order. Essentially, if the court were to consider only subjective fear, it would be merely determining whether the victim consented to dissolving the final restraining order without considering other relevant information. This is not what the Legislature intended because this interpretation would render the “good cause shown” language inoperative. Thus, the courts must consider objective fear--not subjective fear. Id. at 437.
An objective standard requires the court to determine “would a reasonable victim similarly situated have fear of the defendant under the circumstances” Id. at 438.
It is important to remember, however, that this process does not completely erase the finding of domestic violence that was originally made by the court. This process simply allows the final restraining order to be lifted or vacated so that it does not exist anymore. The finding of domestic violence remains a part of the court’s record, and the defendant’s name will remain on the National Domestic Violence Registry. However, it does remove the threat that the defendant might be arrested at any time due to the plaintiff advising the police that the other party has violated a domestic violence restraining order.
You may wish to contact an attorney who specializes in family law. Sometimes, an initial consultation is free or at a minimal cost. You can discuss the specific facts of your case, evaluate your options and decide how to proceed. If there have been no problems over the last 13 years, you have a decent chance of having the order lifted. Moreover, it is possible that your ex may agree to lift the order.
I hope you find this information useful.
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