The Purpose of a Restraining Order and How to Obtain One
A restraining order is an order issued by a judge to protect an individual from domestic violence. The order protects the individual by prohibiting the defendant from initiating any type of contact. A restraining order can be obtained by filing a complaint with the court during business hours. If it is necessary to obtain a restraining order after hours or on weekends, a complaint can be filed with the local police department.
In order to obtain a final restraining order (an order that lasts indefinitely, or until one of the parties requests a change or end to the order) the judge must hear from both parties. There may be witnesses who testify as to the type of harassment or violence that occurred, and evidence may be presented to corroborate the witnesses' stories.
Domestic Violence and Restraining Orders
Victims of domestic violence may be hesitant to file for a restraining order because they don't know what type of behavior qualifies as “domestic violence.” According to the New Jersey Courts, domestic violence is “the occurrence of one or more criminal offenses such as homicide, assault, terroristic threats, kidnapping, false imprisonment, sexual assault, lewdness, criminal trespass or mischief, harassment or burglary.” In determining whether an act qualifies as domestic violence such that a restraining order should be issued, the court considers a number of factors. Some of these factors include any previous history of violence between the parties, including threats, harassment and physical abuse; the existence of immediate danger to person or property; the financial circumstances of the parties; and the best interests of the victim and any child.
A Restraining Order May Be Granted on One Singular Egregious Act
In the case of McGowan v. O'Rourke, 391 N.J. Super. 502 (App. Div. 2007), the Court held that a single egregious “act” could constitute violence within the meaning of the prevention of the Domestic Violence Act for the purpose of issuing a Final Restraining Order. In this case, it was stipulated that there was no previous history of domestic violence between the parties, however the plaintiff obtained a Temporary Restraining Order against the defendant, her former boyfriend, asserting, among other allegations, that the boyfriend had harassed her by sending nude photographs of her to her sister and by threatening to show the pictures to her co-workers' children.
How to Define a Single Egregious Act
In these types of incidences the question becomes: What constitutes a single “egregious” act? An analysis must be done on a fact-specific, case-by-case basis. The judge must find competent, credible and supportable evidence that an act of harassment or other crime/offense occurred. It is important to thoroughly review all the facts and circumstances of the egregious act and any prior history of domestic violence with an experienced matrimonial and criminal defense law firm if you are seeking a final restraining order or are defending against a restraining order.
Contact an Experienced Divorce Lawyer
The law firm of Villani & DeLuca, P.C. has represented hundreds of litigants who have had to deal with restraining orders, as both victims and defendants. We are uniquely qualified to represent victims of domestic violence. Vincent C. DeLuca, Esq. is a certified matrimonial law attorney with over 19 years of experience in representing individuals in all aspects of family law cases. Partner, Carmine R. Villani, Esq., is an experienced criminal defense attorney whose criminal background and experience has enabled him to successfully try a number of domestic violence restraining order cases. Mr. DeLuca and Mr. Villani work together and formulate the appropriate strategies to ensure the optimum result for their clients. Should you find yourself in a situation involving any type of restraining order, please contact Villani & DeLuca, P.C. at 732-965-3404, as it would be in your best interest to ascertain a legal opinion as to your rights.