Getting Out from Under a Final Restraining Order
In New Jersey, specific Factors can be taken into consideration to vacate a Final Restraining Order
Final Restraining Orders in New Jersey are just that – final. They are permanent. They do not expire and a victim does not have to have them renewed. Without action, a Final Restraining Order will stay in effect for the rest of your life. And an accidental phone call or running into the victim while in public could result in criminal charges being filed against you for violating a Final Restraining Order.
However, this does not mean that the Order cannot be vacated. Final Restraining Orders can be lifted one of two ways – either upon the victim’s request to the court or upon Motion by the Defendant. If a Defendant wishes to have a Final Restraining Order that has been filed against them lifted, they must file a formal Motion with the Superior Court, Family Division. A judge will conduct a careful analysis and weigh several factors in deciding whether to vacate a Final Restraining Order or leave it in place. The case of Carfagno v. Carfagno, 288 N.J.Super. 424 (1995) sets forth those factors that a judge will consider in making this determination. Those factors are:
- Whether the victim consents to lifting the Restraining Order.
- Whether the victim fears the Defendant.
- The nature of the relationship between the parties today.
- The number of times 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 Defendant’s request.
- Whether another jurisdiction has entered a Restraining Order protecting the victim from the Defendant.
- Other factors deemed relevant by the Court.
As the judge weighs these factors, it is possible to have a Final Restraining Order lifted even if a victim objects. These types of applications regularly result in hearings, during which both parties will testify and be subject to cross-examination. Testifying in open court can be a daunting task, especially given this type of subject matter.
Our Lawyers can Guide you through the Process
A careful analysis of these factors as well as other relevant New Jersey case law is imperative to a successful application to vacate a Final Restraining Order. If you are subject to a Final Restraining Order and wish to have it vacated, contact us today to discuss your options and let us help you.