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xavierjd
xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience:  20 yrs exp. in divorce, custody, visitation & support .
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Final Restraining Order given at hearing. Ex did not ask for

Customer Question

Final Restraining Order given at hearing. Ex did not ask for FRO but got one. Is this legal?
I had 2 or 3 tro's aginst my ex. The last one, I didn't drop but requested the FRO based on an event. At the hearing his GF testified to me slapping my ex. Never happened. Other witnesses counter 'claimed' in my defense. I had no record of DV only ex did. The judge we were in front of I since learned does these 'crazy' things lot. My question is-- Myex never had a TRO, and did not ask for an FRO. But the judge ordered it.
Submitted: 1 year ago.
Category: Family Law
Expert:  xavierjd replied 1 year ago.
Thank you for using JustAnswer.com It will be my pleasure to assist you today.

Did your ex say anything, or did you say anything, about the FRO being ordered when your ex didn't request it?

Thanks
Customer: replied 1 year ago.


No. This occurred 13 years ago. My (past) attorney and I walked out stunned.

Expert:  xavierjd replied 1 year ago.
Hi Patrice,

I'm sorry for the delay in responding to you. I was finishing assisting another customer.

Have you ever gone back to court and ask to have the FRO lifted?

What are you prohibited from doing?

Thanks
Customer: replied 1 year ago.


No I have not. It was never acted on for 13 years. Ex took my kids on Christmas day when I was dropping off family. I went to get them (it was my parenting time and I wanted the time with my children-- we had plans). He had me arrested-- cop was an AH-- couldn't get two judges to 'put me in jail'. Third judge he called, he said I forced my way in. (I knocked on the door) I was jailed-- IT was a $5000.oo bail-- no 10%, and Christmas day, no bail bondman.


FRO-- EVERYTHING.

Expert:  xavierjd replied 1 year ago.
Hi Patrice,

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.

  1. whether the victim consented to lift the restraining order;
  2. whether the victim fears the defendant;
  3. the nature of the relationship between the parties today;
  4. the number of times that the defendant has been convicted of contempt for violating the order;
  5. whether the defendant has a continuing involvement with drug or alcohol abuse;
  6. whether the defendant has been involved in other violent acts with other persons;
  7. whether the defendant has engaged in counseling;
  8. the age and health of the defendant;
  9. whether the victim is acting in good faith when opposing the defendant's request;
  10. whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and
  11. 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.

 

 

 

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD

 

Customer: replied 1 year ago.


Thank-you for the comprehensive response.I was fairly familiar with the quoted ?statutes?-- But the way you put it and your commentary may have helped solve this for me.


Re consulting an attorney... the Christmas 'event' occurred 15 months ago-- and he refused to give the kids back after Christmas. I had my (sadly now ex) fiance communicating with him to try and reason. 38 days later (Feb 2, 2012) he filed an OSC to keep the kids. The Judge granted. I nearly died. Worse, the hearing (which was supposed to occur within 28 days of children being removed from home) was constantly delayed and did not occur until May 2012. My attorney-- who had the state prosecutor (willingly when she heard the story) get the charges dismissed-- by getting my ex to admit he was NOT afraid., well, that attorney did not 'put on a case' when we finally got the May hearing..... the judge was P O'd, and would not give me my kids back--- ordered child support without ex's business tax returns-- only personal (which showed at least $180,000.00 less than correct) -and based my income on what my ex said it was instead of my CIS and tax return- imputing $40,000.00 more over my $50,000.00 income. I paid that attorney $11,000.00. He wanted to leave... I let him. Went Pro se a couple months---filing one OSC because my ex was not bringing kids for the couple hours on Saturdays, and Wednesday dinners. Used the OSC to try and reveal the truth to the judge-- he appeared to see and encouraged me to get a Motion for Recon in. I did. By deadline. Judge denied it. Ex's attorney made me LOOK like an AH unfit mom. You can't believe my tears. Judge ordered Psych expert report--- 28 visits w ex and his now wife, me and the children (not w ex-- FRO in place) and a $7000.00 bill to me (slip up by my first attorney when a faxed consent order for one of the delays for the hearing was signed without him reading fully-- "Plaintiff shall pay all of Dr B's fees") Shrink says "I don't know why the Judge took your children from you--- WORSE-- was that she had been the shrink 4 years prior when my son was struggling in his relationship w his father. She was a treating shrink who became a forensic shrink who took freaking 6 months and "Not sure yet if children should go home" $ $ $ . I feel strongly that this was malpractice.....but nobody care...The children spoke to the judge-- September 19-- "We want to go home-- please put it back the old way"---finally had follow up hearing in December-- still just got temporary orders of overnights-- 3 a week starting in January this year-- Kids still want me to fix. In December hearing, Judge abdicated his responsibility for ordering the parenting time and also by not dealing with the child support problems. I hired a big shot firm, but young attorney, last October for the December follow up hearing and despite a really great HUGE brief the judge wouldn't deal with the gross mistakes of the case.Cost-- $31,000.00


 


A final order restraining a defendant shall be issued only on a specific finding of domestic violence This is interesting-- I will check the hearing but I'm near positive this was not 'done'.


 


(2), “whether the victim fears the defendant.” Again-- interesting-- ex admitted not afraid (6'1" 260 lbs) when arrest for violating FRO hearing was done-- ghe never showed up to testify-- my first attorney he would see armageddon if he tried his lies in the criminal division---- maybe he was worth that $11,000.00


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. 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. I am NEAR POSITIVE there is no finding and I never got any info re National DV record. How can I find that out other than reviewing the court findings and transcripts from Jan 2000?


I read that the Carfagno hearing must be heard in front of the original Judge-- she is still a judge at the court. Would I motion for the Carfagno and specifically ?request her? And does a motion for the Carfagno need the certifications and attachments like a regular FD motion? Or are just arguments and witnesses used Or depositions etc?


 

Expert:  xavierjd replied 1 year ago.
Hi Patrice,

WOW! It sounds like your life has been EXTREMELY stressful due to all that has been happening. It must be VERY difficult for you and the children.

1. If you file your Motion/Petition using the original case number, the case will automatically be heard by the same judge. If the judge no longer sits in the family division, then the judge who took his/her place will hear your Motion/Petition.

2. If you want to dissolve a restraining order, then you must make an application to the Family Court. The judge who hears the application to dissolve the restraining order must have a complete record of the original domestic violence hearing(s). The court must review these proceedings so as to make an informed decision as to whether or not to dissolve or modify the restraining order. You may also want to attach any completion of counseling that you have completed, and any documentation that would assist the judge in determining that the Final Restraining Order should be resolved.

I hope you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD
Customer: replied 1 year ago.

Thank you for your help. I am going to file a motion for a Carfagno hearing. I will try to read as much as I can on how. Can I get back to you agin in the future?

Expert:  xavierjd replied 1 year ago.
Hi Patrice,

You can absolutely get back to me in the future. You just have to specifically ask for me as the expert.

I hope that you have found the information that I provided useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD
xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience: 20 yrs exp. in divorce, custody, visitation & support .
xavierjd and 8 other Family Law Specialists are ready to help you
Expert:  xavierjd replied 1 year ago.
Hi Patrice,

Thank you so much for the "excellent service" rating! It is greatly appreciated and I am glad that you found the information useful.

If you have future questions, you can specifically request me by name as the expert.

Thanks again,

xavierjd
Expert:  xavierjd replied 1 year ago.
Hi Patrice,

Thanks for the generous bonus! I REALLY appreciate it!

I wish you the best!

xavierjd
Customer: replied 1 year ago.


Your welcome. Thank you for helping me. I'm likely bankrupting on all my cards anyway....... sadly-- Over the past 15 years (we were married only 23 months-- split up when the kids were 6 and 18 months old) my ex has filed 31 motions and sued for custody four times (none of the experts have taken my children and warned that ex was going to cause harm to the children if he continued w his stupidity). So I have been here before-- just finished getting everything together just before Christmas kidnapping. I am a professional woman but have kept my hours to a little less than school hours. Now...... broke for real this time.

Expert:  xavierjd replied 1 year ago.
Hi,

I'm SO sorry that you have had to go through such hard times. It is unfortunate that your ex has continued to make your life and your kids' lives miserable.

For the amount of money that has been spent on lawyers, you could have practically paid for your kids' college educations!

Again, best of luck. Just specifically ask for me if you have any other questions or want to update me.

xavierjd
Customer: replied 1 year ago.


Is there an accessible database of NJ appellate cases where the appellate division states that YES certain things other than child abduction are INDEED 'EMERGENT' and can and should be ruled upon by a trial judge and not denied because the judge doesn't consider it emergent? I want to find outr WHAT kind of things can be ruled on or accepted to be ruled on and want to rely on cvase law for getting heard instaed of getting put into a regular motion schedule which for our system is mort of the time 2 to 3 months later. I want to see cases where the Appeal division ruled in favor of a party that was seeking an OSC 'hearing' and was denied, because the OSC was not considered emergent by the trial judge, but was considered emergent by the person seeking orders?


 

Expert:  xavierjd replied 1 year ago.
Hi Patrice,

I apologize for the delay. I have been ill.

There is no real accessible database for all appellate cases. Some decisions are "published" decisions and some decisions of the appellate court are not published.

I'm not quite sure that I fully understand your question. A Carfagno hearing is different than an Order for Show Cause. Can you please provide me some more facts, or clarify your question for me?

Thanks so much.
Customer: replied 1 year ago.


I am sorry to hear you are sick. My secret--- I am a Family Practice physician with a specialty fellowship in addiction medicine. I would help you anytime you would would ever need it-- questions or anything. I am licensed in PA and NJ. I finished my residency in June of 93, had my first child in December 95 and second in December 96-- and divorced (DV) when they were 6 and 18 months old. Ex and I together only 23 months-- I've been paying for that mistake with my life for 17 years now. Bottom line-- I have worked and been a single mom throughout all of this-- I just limit my positions to early starts and home by 2:30, and off on Fridays to be ready for kids and weekends. I keep myself very sharp in the medical update arena so that I can name my hours and pay. It has worked well but employers ditch me whenever court gets heated up.


I went to court on Friday-- Pro Se-- OSC to get my ex to bring my son for his tutor. I added a few other urgent things -- all denied except the tutor. The Judge hates me-- did already-- because I remind him of how badly he f'd up this case. But now he knows I am Unemployed and in foreclosure, and had to let my attorney go, and that my kids still want him to fix things. He said file a regular motion. Which I hope to have ready for Wednesday submission. I need a couple of rules (preferrably Appellate published) that prevent a Judge from ordering child support before all documnets are provided especially Closely held S- corps, and LLC-- both of which my ex has and hides money in--- MMMAANNNYYYY add backs. He only provided his personal return-- despite the last few court appearances over the years where he had to provide his K-1 and other Biz returns. He cheats the IRS along with his children. Also-- the court jacked up my income on a lie by him. I have the transcript from the IRS archives of the real tax return-- $9,400.00- the court used my ex's lie of $94,000.00. This lie changed my child support check in 2004 from 348.00 a week tyo $47.00 a week for the last 8 years. I let it go because I couldn't afford more attorneys then either. Any chance, If I prove he lied to get that, I could get a 'retroactive' fix? It was a 'bad faith' maneuver at best. So those are my questions of the moment. I have a plan-- file a motion this week to get the correct forms (tax returns etc-- which he was ordered to produce on December 11-- within 30 days and still hasn't-- And use them to populate the 2011 CS worksheet. Also get an honest accounting of his income-- (best place/person to do forensic accounting?). Once that is done, get a CARFAGNO-- it would utilize the witnesses I need to show the current judge that ?Judicial error? occurred? So reverse everything back to Feb 3 ex's OSC LIE .


And next, now that I have the right numbers hopefully, can we give me my kids back and re-calculate CS for 2011?-- and I recieve all except an abatement for the expenses that travel with the children because this was a TEMPORARY change in parenting based on ORDERS that were generated by lies of the defendant (ex) ? OK, thats a lot of questions and advice I need, but wasn't there a time you wanted to go into law when you wanted to help us dummies who are getting railroaded by people like my ex USING the legal system to destroy lives?

Expert:  xavierjd replied 1 year ago.
Hi Patrice,

First of all, you are NOT a dummy! It just sounds, from your posts, that you have been getting the short end of the stick! a "dummy" wouldn't be able to file motions and navigate the system as you have done. So....give yourself credit. Don't belittle yourself!

RULE 5:6A. CHILD SUPPORT GUIDELINES

 

The guidelines set forth in Appendix IX of these Rules shall be applied when an application to establish or modify child support is considered by the court. The guidelines may be modified or disregarded by the court only where good cause is shown. Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that an injustice would result from the application of the guidelines. In all cases, the determination of good cause shall be within the sound discretion of the court.

 

A completed child support guidelines worksheet in the form prescribed in Appendix IX of these Rules shall be filed with any order or judgment that includes child support that is submitted for the approval of the court. If a proposed child support award differs from the award calculated under the child support guidelines, the worksheet shall state the reason for the deviation and the amount of the award calculated under the child support guidelines.

 

RULE 5:6B. COST-OF-LIVING ADJUSTMENTS FOR CHILD SUPPORT ORDERS

All orders and judgments that include child support entered, modified, or enforced after the effective date of this rule shall provide that the child support amount will be adjusted every two years to reflect the cost of living. The cost-of-living adjustment shall be based on the average change in the Consumer Price Index for the metropolitan statistical areas that encompass New Jersey and shall be compounded. Before a cost-of-living adjustment is applied, the parties shall be provided with notice of the proposed adjustment and an opportunity to contest the adjustment within 30 days of the mailing of the notice. An obligor may contest the adjustment if the obligors income has not increased at a rate at least equal to the rate of inflation as measured by the Consumer Price Index or if the order or judgment provides for an alternative periodic cost-of-living adjustment. Either party may contest the cost-of-living adjustment based on changed circumstances and may request that the Appendix IX child support guidelines be applied to adjust the amount of child support to be paid. The application of the child support guidelines shall take precedence over cost-of-living adjustments. A cost-of-living adjustment shall not impair the right of either parent to apply to the court for a modification of support provisions of the order or judgment based on changed circumstances. The forms and procedures to implement cost-of-living adjustments shall be prescribed by the Administrative Director of the Courts.

 

The appendix notations can be found in the included link below included in the link below.

 

http://www.judiciary.state.nj.us/csguide/index.htm

 

The hard part for you is obtaining evidence that he is under reporting or not reporting all of his income. For a modification to be granted, you REALLY have to show at least some proof of his under reporting of income. If you can get any documentation that shows his under reporting of income, it would go a long way towards getting the judge to appoint a forensic type CPA to review both of your income tax records and any other documentation relating to support issues.

 

If the judge orders that your ex produce all income earned in the last xx amount of years, he is under a court order to do so. If he fails to do so, he can be found in contempt of court, and may be possibly jailed until he turns over all of his documents as ordered by the court.

 

The problem is that the judge may not usually grant any additional support retroactively. In most cases, a change in child support occurs from the time the motion is filed. However, if there has been an intentional withholding of financial earnings by your ex, it is possible that the judge may be able go back until the time the under reporting can be proved.

 

I am happy that the judge found the tutoring issue to be an emergency. So, you need to first focus on dealing with that motion before filing any other motions for child support. Once the decision about tutoring is made, you can appeal that decision if you lose. But, then you can focus totally on the child support issues.

 

I hope you find this information useful.

 

 

 

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD

 

 

 

 

 

 

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