The Basics of Domestic Violence

The Basics of Domestic Violence

The Basics of Domestic Violence

 

Q. What is a restraining order?

A Restraining Order is an Order issued by a Court that is designed to protect a victim of domestic violence. The Order typically directs the abuser to stay away and have no contact whatsoever, directly or indirectly, with the victim. If the parties reside together the Order will often require the Defendant to vacate the residence. The provisions contained in a Restraining Order are based upon the circumstances and can vary from case to case.

Q. Who is protected (The “Protected Class”) under New Jersey’s Domestic Violence Law?

The Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 et seq. applies to any person 18 years of age or older or an individual who is an emancipated minor that has been subjected to domestic violence by a spouse, domestic partner, ex-spouse or domestic partner, and/or any other person who is a currently or was formerly a household member. An emancipated minor is someone who is less than 18 years of age who has been declared to be “emancipated” by a court of law or state agency. Typically, someone but who has been married, has entered military service or has a child or is currently pregnant will be deemed “emancipated.” In addition, a domestic violence victim can be an individual who has experienced an act which constitutes domestic violence by a person with whom the victim has a child, or with whom the victim anticipates having a child should one of the parties be pregnant.   Individuals in a dating relationship are also included in the definition of “victim” of domestic violence.

The definition of victim has been expanded and is broadly defined. Thus, a person does not have to be married to, or a domestic partner of, the person who perpetrated an act of domestic violence to be considered a victim. You can also be a victim of domestic violence if (i) you or the abuser have children in common, regardless of whether or not you are, or ever were, married , or, have ever resided together; (ii) you are pregnant with the abuser’s child or the abuser is pregnant with your child; (iii) you and the abuser live or have lived together in the past; (iv) you and the abuser are currently in, or have been in the past, a dating relationship. Additionally, you can be a victim if the abuser is a family member, a roommate, a guardian or any other adult who lives with you now or has ever lived with you.

Q. What conduct or behavior constitutes domestic violence?

Domestic violence typically occurs in connection with certain criminal acts and offenses, some of which do not involve actual physical violence or an assault. They are:

Homicide N.J.S.A. 2C:11-1

Assault N.J.S.A. 2C:12-1

Terroristic threats N.J.S.A. 2C:12-3

Kidnapping N.J.S.A. 2C:13-1

Criminal Restraint N.J.S.A. 2C:13-2

False imprisonment N.J.S.A. 2C:13-3

Sexual assault N.J.S.A. 2C:14-2

Lewdness N.J.S.A. 2C:14-4

Criminal sexual contact N.J.S.A. 2C:14-3

Criminal mischief N.J.S.A. 2C:17-3

Burglary N.J.S.A. 2C:18-2

Criminal trespass N.J.S.A. 2C:18-3

Harassment N.J.S.A. 2C:33-4

Stalking N.J.S.A. 2C:12-10

You are a victim of domestic violence if you have experienced one or more of the following events and the abuser is a person over 18 years of age or is an emancipated minor, and you are a member of the Protected Class as defined above:

  1. You have been physically attacked or beaten, have been slapped, punched, kicked or even had your hair pulled. You have also been subject to any other physical attack, such as shoving or grabbing, which causes you harm or the fear of harm
  2. You receive threats to you or your children that cause you to fear for the physical well-being of yourself or your child(ren).
  3. You receive threats to you or your children that cause you to fear for your life and/or the life of your child(ren).
  4. You are forced to engage in sexual intercourse or any other sexual act (including touching and nudity), under the threat of harm to you or someone else.
  5. Damage to your personal property or property under your care, including theft of personal items.
  6. Repeated verbal attacks and humiliation and attacks, such as being called vulgar or insulting names.
  7. You receive numerous phone calls or text messages and/or other communications anonymously or at extremely inconvenient hours, that causes you annoyance or alarm.
  8. You are or have been followed, or are told that you are being watched, or that your whereabouts are known to the abuser, or you are repeatedly told that you are in physical proximity of the abuser, of which you were unaware, and these actions cause and any accompanying verbal comments make you to fear bodily injury to you or a member of your family or to fear the death of you or a member of your family.

Q. Should I call the police if I believe that I am a victim of Domestic Violence?

 Yes. If you believe that you are the victim of domestic violence you should immediately notify the police. The domestic violence law requires the police to respond to a domestic violence call, and enforce the law when applicable. Under such circumstances the police will, at a minimum, make a report. However, a police officer is mandated to make an arrest if the victim exhibits signs of injury caused by an act of domestic violence.  When the victim exhibits no visible sign of injury, but states that an injury has occurred, the police officer should consider all relevant factors in determining whether there is probable cause to make an arrest. A victim may also seek a temporary restraining order (“TRO”) once the police become involved. In that event, the police will notify the Municipal Judge, or any other designated Judge who has jurisdiction, and the incident will be explained to the Judge who will then decide whether to issue a TRO. However, you do not lose your right to seek a TRO from the Superior Court should you choose to not request a TRO at that time. You should, however, obtain a police report number, and request a copy of the same, in case you do wish to later seek a TRO.

Q. Can I Obtain a Temporary Restraining Order without First Contacting the Police?

 Yes. In New Jersey, the Superior Court, Chancery Division, Family Part is authorized to issue a Restraining Order even in the absence of police intervention. A victim may visit the Domestic Violence Unit of their local Superior Court during regular court hours and request a Temporary Restraining Order (“TRO”). Typically the victim will need to appear before a Judge, and in some instances a Domestic Violence Hearing Officer, and provide a factual basis for the issuance of the TRO. This may be accomplished through testimony alone. If an incident occurs when the Superior Court is closed and an emergent TRO is needed, you will have to notify the local police department which will then contact the Municipal Court Judge, or another designated Judge, who also has authority to issue a TRO.

 Q. How Does The Restraining Order Process Work?

If the police are involved, and you are seeking a TRO, the Municipal Court Judge, or another designated Judge, who also has authority to issue a TRO, will hear the facts (which may be heard in-person or via the telephone, etc.) and issue the TRO if he or she believes the allegations meet the requirements of domestic violence. The matter is then referred to the Superior Court, Chancery Division, Family Part for a final hearing (i.e., trial) on the complaint. The court date has to be scheduled within 10 days of the complaint, and is typically scheduled within 7-10 days after the filing of the complaint.

If the victim decides to seek a restraining order directly from the Superior Court (with or without prior police intervention), the victim will first be interviewed by a domestic violence officer. In some instance, the victim may also meet with a representative from the Battered Women’s’ Program. A complaint will be processed and the case will be heard as soon as possible before a Judge or a Domestic Violence Hearing Officer in court that same day. If the Judge or Domestic Violence Hearing Officer believes the complaint meets the requirements of domestic violence, the victim will be issued a TRO. As stated above, the case will then be scheduled to return to court for a final hearing within 10 days. In instances where the TRO is obtained through the Superior Court, as opposed to the Municipal Court, it is the victim’s responsibility to bring a copy of the TRO to local police department.

Q. What happens at the final hearing?

On the new Court date, a final hearing is technically scheduled. That means the Judge will either hold a trial that day or the case may be adjourned for any number of reasons. For example, the trial may commence that day, but be adjourned due to time constraints. If the trial is adjourned, the TRO will be extended to the next court date. At the trial, testimony from both the victim and the abuser will be heard and considered. Evidence may also be submitted to the court in support of or in opposition to the complaint. At this time, a decision will be made whether an act of domestic violence occurred and what type of reliefs should be granted to the victim. If there is evidence to believe the victim’s complaint, a Final Domestic Violence Restraining Order (“FRO”) will be issued to the victim. A copy of the FRO will be issued to both the victim and the abuser. The victim must also bring a copy of this order to the police department in the town in which he or she resides to inform the police department of its existence.

Q. What type of relief may a victim be entitled to after the final hearing?

 If the court grants the victim a Final Restraining Order (“FRO”), a victim is afforded various forms of relief: protection from future violence, directives to stay away from the victim, visitation, custody, support payments or other monetary compensation, rent or mortgage payments, temporary possession of personal property, conditions of visitation for defendant, professional counseling, and/or prohibition against weapon possession are available.

Q. How long does a final restraining order last?

In theory, the Final Restraining Order (“FRO”) is permanent so long as both parties comply with its provisions. For example, unless otherwise provided in the FRO to facilitate parenting time, or the occurrence of a medical emergency involving a common child, etc., the victim should avoid directly contacting the abuser. The victims own failure to comply with the order may create grounds for dissolving/vacating the FRO. Additionally, after the passage of an extended period of time, and where there has been no contact between the parties or other violations of the FRO, the abuser may file a request to vacate the FRO. Finally, the parties may subsequently consent to vacating the FRO. In essence, there is no specific time limit on how long the FRPM remains in effect.

Q. What if the Abuser violates a restraining order?

 If there has been a violation of a temporary or final restraining order, the victim should immediately contact his or her local police department, go to the local municipal court and sign a criminal complaint for the violation of the restraining order. The victim will need to describe how the restraining order was violated. The abuser will be arrested and charged with contempt for a violation of the restraining order. The abuser will be brought to the Superior Court for a bail determination. Afterwards, a court date will be scheduled. The victim will be represented by the prosecutor in any future prosecution of the charge. In the absence of any other evidence demonstrating the violation, the victim will most likely be required to testify as to the events establishing the violation.

Q. What happens if I wish to get back together with the person who committed domestic violence against me?

If you are the victim of domestic violence and decide that you wish to get back together with the abuser, you must return to the Superior Court and file a request to withdraw/vacate the restraining order. You will again be interviewed by a domestic violence probation officer for purposes of insuring that you are not being forced or coerced into vacating the restraining order. You will then be required to appear before the Judge and explain your reason for your decision to vacate the restraining order. If the Judge is satisfied that you are doing so of your own free will, and without any threats form or fear of the abuser (direct or otherwise), the will grant your request.

The above is for information purposes only and does not constitute legal advice. For more information or to consult with our attorneys, please feel free to contact The Choi Law Group, LLC.