Divorce FAQ's
1. How can a restraining order be dissolved?
The victim has a right under the Domestic Violence Act to either dissolve or modify a final restraining order. The victim must go to the Family Intake to be screened to see if the change if voluntary, without coercion and duress, and be counseled concerning their rights and the ramifications of the dismissal. She is advised that she no longer is offered the restraints and protections of the Domestic Violence Act, but that she may still, in the future, apply for another restraining order if necessary. She is further informed as to the “cycle of domestic violence theory.”
Unfortunately, a DV final restraining order once it is entered in New Jersey it is permanent. If the victim does not voluntarily ask the court to dismiss the DV order, then the defendant must file a motion with the Family Court to request same. In the vast majority of states restraining orders or orders of protection are subject to periodic review, they must be renewed, or they self-terminate after a certain period of time. Here, in New Jersey a restraining order can only be be dismissed if you file a motion with the court.
2. What are the factors that a court uses to determine whether the defendant has established good cause to dissolve a restraining order?
If a person wants to dissolve a restraining order, then she must make a motion with 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. There are eleven factors to consider for the “good cause” necessary to dismiss or modify a restraining order. The eleven factors to consider when evaluating an application to dismiss or modify a restraining order was developed in the case of Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995).
a. Consent of Victim to Lift the Order
The first factor is whether the victim consents to dissolve the final restraining order. Where the victim has consented to lifting the restraining order and the court finds that the victim is doing so voluntarily, the court should dissolve the order without further consideration or analysis.
b. The Victim’s Fear of the Defendant
The Domestic Violence Act protects victims from physical harm. Yet, physical safety is not all that the Legislature intended to protect. Recognizing that domestic violence occurs in a relationship where one party asserts power and control over the other, the victim is also protected from mental or emotional harm. Fear of the defendant is the center of the cycle of power and control existing in domestic violence situations. Restraining orders have the effect of empowering the victim to stand up to the defendant. Thus, the victim’s alleged fear is critically important to consider.
c. Nature of the Relationship Between the Parties Today
The third factor is the nature of the relationship between the parties today. Here, the court must look to determine whether the relationship today is one that would allow the defendant to exercise control over the victim. Where the parties do not have children in common and have little other reason to contact each other, it would be more appropriate to dissolve a final restraining order. Where the parties have reason to contact each other, such as where the parties have children in common, it may be less appropriate to dissolve a final restraining order. Other factors for the court’s consideration are the relationship of the parties at the time the order was entered. If, for example, there was a dating relationship when the order was entered and two years later when the application is filed, both parties are married to other persons, dissolution may be more appropriate. Certainly, the physical proximity of the parties to each other is another factor bearing upon the relationship. If the parties live in different areas, depending upon other factors present, dissolution may be appropriate. In all cases, however, when considering the relationship of the parties, the court must determine whether there are indicia of control and domination exercised by the defendant over the victim in the limited amount of contact between the parties permitted under the final restraining order.
d. Contempt Convictions
The fourth factor is the number of times that the defendant has been convicted of contempt for violating the final restraining order. The number of violations of the final restraining order gives an indication that the final restraining order is not totally effective in breaking the cycle of power and control exercised by the defendant.
e. Alcohol and Drug Involvement
The fifth factor is whether the defendant has a continuing involvement with drugs or alcohol. In most domestic cases drugs and alcohol play a very important factor. Accordingly, drug or alcohol use is highly relevant in determining whether the victim still needs protection.
f. Other Violent Acts
The sixth factor is whether the defendant has perpetrated violent acts upon the victim or other persons. The defendant’s violent nature as evidenced by other violent acts is relevant to whether the victim needs continued protection.
g. Whether Defendant Has Engaged in Domestic Violence Counseling
The seventh factor is whether the defendant has engaged in domestic violence counseling. Counseling may be effective in breaking the cycle of power and control.
h. Age/Health of Defendant
The eighth factor is the age and health of the defendant. In some cases of age or infirmity, it might be appropriate to dissolve the final restraining order.
i. Good Faith of Victim
The next factor is the good faith of the victim in opposing the defendant’s request to dissolve the final restraining order. The court is mindful that sometimes one party to a divorce action abuses the Domestic Violence Act to gain an advantage in the underlying matrimonial action.
j. Orders Entered by Other Jurisdictions
The final factor is whether the victim is protected from the aggressor by “a verifiable order of protection from another jurisdiction.” Under 18 U.S.C. § 2265(a), a restraining order entered in one state is entitled to full faith and credit by courts of another state. Thus, the fact that a foreign state has entered a restraining order protecting the victim from the aggressor must be known and considered by the court.
k. Other Factors Deemed Relevant by the Court
The court also needs to consider any other factors raised by the parties which, based upon the evidence presented, may show that good cause exists to dissolve the restraining order.
3. What are some of the other important points of the Carifagno case?
In the insightful case Carfagno v. Carfagno, 288 N.J. Super., 424 (1995) the Supreme Court of New Jersey provided in pertinent part:
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.
Thus, a defendant is legally required to establish a basic showing in his motion papers that there are strong grounds to justify a hearing. If this legal burden is satisfied then the court will grant a hearing to more thoroughly consider the application. In many family court applications, it is simply impossible for a judge to simply rule on the papers. A judge simply can’t cross-examine a motion package. Moreover, the judges want to cover themselves. If a judge simply “rubber stamps” and grants a motion to dissolve a restraining order, and if some unfortunate even happens in the future, then the judge could lose his or her job. At this hearing, the parties will have the right to testify, to present other witnesses, to cross- examine the witnesses, and to present appropriate documentary evidence. The most important Carfagno factor is number two (2); “whether the victim fears the defendant.” Most judges will exhaustively address the factor two, and make exhaustively inquiries as to whether the victim’s alleged fear of the defendant is objectively real.
It is important to emphasize that if you are successful, and if the restraining order is vacated, this process will not completely erase the entry of the domestic violence order. Instead, the final restraining order is simply lifted or vacated and it does not exist anymore. Unfortunately, the finding of domestic violence will still remain as a part of the court’s record. Moreover, the defendant’s name will still remain on the National Domestic Violence Registry. On the bright side, the dismissal of a restraining order will definitely remove remove the threat that a defendant could be arrested for violation a a DV order.
4. I have separated from my wife and she has obtained a restraining order against me. We have just recently reconciled and we are now living together. Is the restraining order automatically dissolved based upon our reconciliation?
No, restraining orders can only be dissolved by a court order. Even if a separated couple reconciles, the restraining order still is enforceable. Moreover, it is not automatic that a court will dissolve a restraining order even if the parties reconcile. It is important to emphasize that the apparent reconciliation between people with a long history of domestic violence seldom marks the end of difficulties. It would be unwise and improper to reconcile if a restraining order is still in force. If there is a flare up in the relationship, then the wife only has to make one call to the local Police Department, and the husband can be locked up for a violation of the restraining order.
An illustrative case is Stevenson v. Stevenson, 314 N.J. Super 350 (Ch. Div. 1998). In this case, the court denied the plaintiff’s request to dissolve a restraining order. Here, the wife was extremely battered and there was a history of domestic violence of the defendant with others, beyond the domestic arena. In addition, there was alcohol abuse and the defendant’s history of assaultive behavior on third parties. In denying the plaintiff’s request the court reiterated that the Domestic Violence Act’s policy to protect victims of domestic violence, even from themselves. The court noted that the dissolution of a restraining order can only be made if there is “good cause” shown. The Stevenson court further held that the court has discretionary and not mandatory authority to dissolve a restraining order.
In summary, while a victim has a right to dismiss or modify their own restraining order, that right is not absolute, and whether or not it is going to be dismissed, is within the sound discretion of the court. In my experience, most courts will impose several conditions on the parties before it dissolves a restraining order. A court may require the parties to attend counseling. The court may compel a husband to attend anger management. Moreover, the court may require the parties to attend drug and alcohol counseling if necessary. If the parties do not comply with the conditions of the dismissal, then the restraining order will be reinstated.