Restraining orders are an unfortunate aspect of many divorces, but the majority of them are temporary in nature. Once the divorce is settled, many exes are able to be civil with each other, especially if they have children. The situation, however, is quite different for exes with a history of domestic violence. Victims of domestic violence are entitled to seek long-term protection from their abusers through a final restraining order (FRO), even if they choose not to proceed with a criminal complaint. An FRO is granted after a formal hearing, during which both parties will have the chance to present their side of the story. The hearing is necessary to determine the type and level of domestic violence that occurred, and whether the incident warrants the issuance of a final restraining order.
One of the most important things to understand about FROs is that they are not permanent, in spite of the word “final”. They can be rescinded by either the victim (plaintiff) or the abuser (defendant), although they are generally withdrawn by the victim. The New Jersey courts require the victim to be interviewed in order to ensure that he or she is not being coerced into withdrawing the complaint. The victim will also need to explain his or her decision to the judge, who will dismiss the restraining order if he or she is satisfied with the victim's explanation.
The process is much more complicated for the defendant, who first and foremost, has to overcome the presumption of being a danger to the victim. The danger, by the way, is not limited to physical acts; most victims suffer from long-term psychological trauma that could be triggered or worsened in the presence of their former abuser. On the other hand, a defendant who has no criminal record, and has abided by the terms of a restraining order for many years does deserve to plead his or her case before the court. If the defendant's motion demonstrates good cause and/or compelling circumstances, a plenary hearing will be held to determine whether the plaintiff still fears the defendant, and whether that fear is reasonable.
This is a very sensitive issue for all the involved parties. While the abuse may have ended many years ago, the restraining order may serve as a safety net that is critical to the plaintiff's psychological well-being. On the other hand, it's not fair to permanently have a restraining order hanging over the defendant's head unless there is good cause to do so. Because of the complexity of the issues that are involved, a formal hearing attended by both parties is required prior to dismissing a restraining order at the request of the defendant.
Whether you are the accuser or the accused, it's important to understand your rights and legal options in any domestic violence situation. For more information on restraining orders and related legal actions such as criminal prosecution of domestic violence, please speak with attorneys of Villani & DeLuca, P.C.
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