What is the Standard for Obtaining a Restraining Order in New Jersey?
A restraining order is a powerful legal tool for those who fear another person doing them harm, or who wish to put a stop to harassment. In the state of New Jersey, restraining orders are issued by both the criminal courts and the civil courts. This is in large part because domestic violence can have different types of impacts. Civil restraining orders are generally issued in response to requests rising from domestic violence situations where the applicant is not necessarily looking for the object to be jailed, but simply seeking relief. Those arising from the criminal courts involve episodes in which a crime such as assault or harassment has already taken place. When the state’s civil courts issue a restraining order to protect somebody against domestic violence, it can take two different forms: temporary and final.
There are two different standards for obtaining a restraining order in the state of New Jersey depending upon whether the proceedings are looking for a temporary order or a final order. There is a relatively low bar to get a temporary restraining order – the judge simply needs to feel that the victim’s allegations of fear of violence are warranted and legitimate. By contrast, when a hearing is held about a final restraining order, a higher bar has been established. The hearing for a final restraining order must be held within ten days of the issuance of the temporary order, and at that time a Superior Court Judge will require a greater degree of evidence in order to prevent the process from being abused. Even with the requirement of evidence, the standard of proof in a civil case is lower than that of a criminal case.
When a restraining order is issued by a criminal court, it is based upon the standard that the defendant represents a threat “beyond a reasonable doubt”. By contrast, when a restraining order is issued in a civil case, the applicant need only provide enough evidence to support the idea that it is more likely than not that they have cause for concern. The evidence submitted is likely to include details of the incident that precipitated the filing for the restraining order, and may include having witnesses testify to what they saw. Documentary evidence may include threatening text message, emails or letters, or recordings that were received on voice mail. The process will include cross examination, wherein the defendant can question both the victim and the witnesses. They are also able to offer their own evidence, and the judge can question both of the people involved. After all evidence has been submitted and all questions answered, the judge will make a final decision based on what was heard, as well as whether there is a previous history of domestic violence and whether the victim is reasonable in fearing for their safety.
When a restraining order is issued, it may include protection from future violence, being prohibited from contacting or harassing the applicant, and custody of any minor children. It can also include temporary possession of personal property and prohibition against weapon possession. For applicants the order represents safety, but for those who have been wrongly accused, it can represent a nightmare. For information on how we can assist you with issues revolving around a restraining order, contact Wallace Law today.