FROs in NJ: Nothing Lasts Forever, or Does It?

The issues of domestic violence (and concomitantly) Final Restraining Orders (FROs) have recently been catapulted to the top of the headlines by professional athletes’ off-the-field actions. Unlike many other states, including all of its neighbors, FROs, which have severe personal consequences, are of unlimited duration in New Jersey. This article will explore New Jersey FROs and the factors underlying litigating a motion to dissolve one.

Prior to 1991, a domestic violence incident was handled through the issuance of a criminal complaint. In 1991, the legislature declared that domestic violence was a “serious crime against society” (N.J.S.A. 2C: 25-18), and that due to law enforcement response, which resulted in different treatment for similar crimes, a uniform act was required. D.C. v. F.R., 286 N.J. Super. 589, 597-98 (App. Div. 1996). The result was the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., which became effective Nov. 12, 1991.

The act covers a person who: (1) is 18 years of age or older (or an emancipated minor) and has been subjected to domestic violence by a spouse, former spouse, present or former household member; (2) regardless of age, has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant; or (3) regardless of age, has been subjected to domestic violence by a person with whom the victim has had a dating relationship. 2C:25-19(d). Since the potential exists that an FRO can be misused to gain an “edge” in a matrimonial action (see N.B. v. T.B., 297 N.J. Super. 35, 42 (App. Div. 1997)),the act should not be trivialized or applied to conduct not involving actual violence or threats of violence. See Silver v. Silver, 387 N.J. Super. 112, 124 (App. Div. 2006).

The first step in the process for obtaining an FRO is for a victim to seek a temporary restraining order (TRO) from a municipal court judge or judge of the Family Part. 2C:25-28(a)(i). Thereafter, within 10 days, an FRO hearing must be held, although it can be adjourned for “good cause.” 2C:25-29(a).At the FRO hearing, the standard of proof is by the preponderance of the evidence, and the court must find that an act of domestic violence has occurred. Silver, 387 N.J. Super. at 125.

Familial relationships are fundamentally altered when an FRO is issued (Cherensky v. Fedorczyk, 346 N.J. Super. 34, 40 (App. Div. 2001)),because an FRO may include all or some of the following relief in the form of an order: granting exclusive possession to the plaintiff of the residence or household even if jointly owned or leased (in-house restraining orders are specifically prohibited, N.J.S.A 29:25-28.1); awarding a plaintiff temporary custody of minor children and setting visitation; requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence (including attorney fees); 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; 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; imposing a temporary support order; prohibiting the defendant from possessing firearms; and any other appropriate relief for the plaintiff and minor children. 2C:25-29(b)(1)-(18). The court can also order monitoring by probation, attendance at anger management, etc.

Besides these restrictions, the issuance of an FRO also has “serious consequences to the personal and professional lives of those found guilty.” Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div. 2004). For example, an order may affect current or potential employment (e.g.,imagine a police officer who is not allowed to possess a gun). Persons adjudicated to have committed domestic violence are included in a central registry, 2C:25-34, which is shared with other law enforcement agencies. As such, he/she may also suffer the embarrassment of being detained and questioned by customs when entering or leaving the country even if accompanied by his/her own minor children based upon the FRO. Furthermore, a violation of an FRO is a criminal offense. 2C:25-29-9(b).

The vast majority of states, including all three of New Jersey’s neighbors, have a limitation on the length of an FRO unless it is extended by some sort of affirmative action. For example, Delaware limits an FRO to no greater than two years unless an extension is requested and granted. In New York, an FRO generally lasts no more than two years, and no more than five years if certain aggravating factors are present. Pennsylvania imposes a limited fixed period not to exceed three years. New Jersey, on the other hand, treats an FRO like an injunction, which protects against the possibility of recurring harm (Stevenson v. Stevenson, 314 N.J. Super. 350, 364 (Ch. Div. 1998)), and which remains forever unless dissolved. 2C:25-29(d).

Under N.J.S.A. 2C:25-29(d), a court may dissolve an FRO “upon good cause shown.” In general, a court will dismiss the FRO “where there is a change in circumstances [whereby] the continued enforcement of the injunctive process would be inequitable, oppressive, or unjust, or in contravention of the policy of the law.” Carfagno v. Carfagno, 288 N.J. Super. 424, 433-34 (Ch. Div. 1995). When considering whether to dissolve an FRO, the previous history of domestic violence between the parties must be fully explored and considered to understand the totality of the circumstances of the relationship, and to fully evaluate the reasonableness of the victim’s continued fear of the perpetrator. Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998).

When determining whether good cause has been shown for an FRO to be dissolved, a court will consider the following factors: (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 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 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. Carfagno, 288 N.J. 435-442.

If the victim voluntarily consents to the dissolution of the FRO, the court should dissolve the order without further analysis. Carfagno, 288 N.J. 435. In contested cases, however, to warrant a plenary hearing, the moving party has the burden of establishing a prima facie case based upon these factors, showing that good cause exists for the dissolution of the FRO. Kanaszka, 313 N.J. Super. at 608. If that burden is met, the court should then determine whether there are facts in dispute, which are material to a resolution of the motion, prior to ordering a hearing. Conclusory allegations must be disregarded. Additionally, in matters where the motion judge did not enter the FRO, a movant must supply the complete record of the matter, which includes all pleadings, orders, the court file and a complete transcript of the hearing. Kanaszka, 313 N.J. Super. at 606-07.

While all of the Carfagno factors are important and the practitioner should address each and every point, the primary factors emphasized in the case law are: the fear exhibited by the victim; the need for continued interaction between the parties; and the timing of the motion. The act is intended to protect the victim of domestic violence from both physical and mental or emotional harm, and it has been noted that the fear of the victim “is the center of the cycle of power and control existing in domestic violence situations.” Carfagno, 288 N.J. 435. However, the fear must be objective in that a court must conclude that a reasonable person in similar circumstances as the victim would be fearful. Id. at 437.The courts particularly focus on this factor where the parties share children in common, presumably because of the need for continued interaction between the parties. Id. The proximity of the parties has also been mentioned as an additional factor. See A.M. v. J.S.V., No. A-4525-11T1 (App. Div. 2013) (nonbinding unpublished opinion). Thus, if one party moves out of state or cross-country, this factor should militate in favor of dissolution.Regarding the timing in bringing a Carfagno motion, Judge Escala pointed out in M.V. v. J.R.G., 312 N.J. Super. 597, 602-03 (Ch. Div. 1997),which involved a motion brought eight months after the FRO was entered, that:

An FRO is by its nature complete at the moment it is entered. N.J.S.A. 2C:25-29. Therefore, it is appropriate that such an order be in effect for a reasonable time before the criteria cited as reasons for dissolution should be examined to determine their permanency and viability. (citation omitted) … The victim should not be forced to relitigate issues with the defendant so soon after the FRO is entered.

While Judge Escala suggested a one-year waiting period, a fixed time requirement has been rejected. See Kanaszka, 313 N.J. Super. at 608. Thus, the courts will continue to focus instead upon whether there has been a substantial change in circumstances instead of any fixed time requirement.

In conclusion, while FROs in New Jersey have serious consequences and impact, they need not last forever. In attempting to dissolve one, however, careful consideration must be paid to the Carfagno factors; pleadings should be narrowly tailored; and the timing of the motion should be factored into any analysis.

Reprinted with permission from the December 18, 2014 issue of the New Jersey Law Journal. ©2014 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. 

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