Kenneth Vercammen's Law office represents
individuals charged with criminal and serious traffic violations throughout New
Jersey.
TRO Temporary Restraining Order in Domestic
Violence Cases
by Kenneth A. Vercammen, Esq.
New Jersey domestic violence laws are very strict.
If there are any signs of physical injuries the police must arrest the abuser.
Even without independent witnesses and no physical injuries, police may arrest
the abuser. Domestic Violence is a crime under the law, and the police must
respond to the calls of victims. The police are required to give the victim
information about their rights and to help them. Among other things, police
must write up a report. For example, O.J. Simpson would not have gotten away
with abuse in New Jersey. Police are automatically required to arrest an abuser
if they see any evidence of abuse or assault. Even during the evening, your
town Municipal Court or Superior Court can issue a civil restraining order
which is a legally enforceable document. The temporary restraining order will
prohibit the defendant/abuser from harassing you or entering your residence.
Unlike a criminal case where a person is provided with lengthy due process, and
if guilty receives probation and a monetary fine, a domestic violence hearing allows
judges to issue far reaching orders. A domestic violence hearing is usually
held within only ten (10) days of the filing of an ex parte complaint and
temporary restraining order. After a hearing , NJSA 2C:25-29 (b) allows the
Chancery Division, Family Part Judge to grant substantial relief to the
complainant. Among the relief the Court may gives is:
(1) An order restraining the defendant from
subjecting the victim to domestic violence, as defined in this act.
(2) An order granting exclusive possession to the
plaintiff of the residence or household regardless of whether the residence or
household is jointly or solely owned by the parties or jointly or solely leased
by the parties...
(3) An order providing for visitation...[ meaning
the complainant obtains custody]
(4) An order requiring the defendant to pay to the
victim monetary compensation for losses suffered as a direct result of the act
of domestic violence...
(6) An order 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...
(7) An order restraining the defendant from making
any communication likely to cause annoyance or alarm...
(8) An order 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...
(9) An order granting either party temporary
possession of specified personal property, such as an automobile, checkbook,
documentation of health insurance, any identification documents, a key, and
other personal effects.
(10) An order awarding emergent monetary relief to
the victim and other dependents, if any. An ongoing obligation of support shall
be determined at a later date pursuant to applicable law...²
(11) An Order awarding temporary custody of a minor
child. The court shall presume that the best interests of the child shall be
served by an award of custody to the non- abusive parent.
(12) An Order requiring that a law enforcement
officer accompany either party to the residence to supervise the removal of
personal belongings.
(13) An Order granting any other appropriate relief
for the plaintiff and minor children
(14) An Order that the defendant report to the
intake office of the Family Part for monitoring
(15) An Order prohibiting the defendant from
possessing any firearm or weapon
Caselaw protects victims. In Pepe v Pepe, 258 N.J.
Super. 157 (Chan. Div. 1992) held that the confidentiality provision of record
keeping under the Domestic Violence act applies to the records kept on file
with the Clerk of the Superior Court.The court held that in determining whether
or not a statutory imposed confidential record should be made public, the court
must consider whether the release of the documents will be harmful to the
victim, whether adverse publicity will be a factor and whether access to court
records will discourage the victim from coming forward.Despite the substantial
financial burden and life restrictions (often referred to as penalties), the
burden of proof in a DOMESTIC VIOLENCE hearing is only ³by a preponderance of
evidence.² Hopefully, parties will put best interests of children ahead of
short term animosity. Financial limitations often limit the family ability to
become involved in lengthy divorce and custody battles.
A DOMESTIC VIOLENCE complaint can be withdrawn. For
additional information, speak with an attorney experienced in handling Domestic
Violence matters. The following is the NJ Court Rule on Restraining Orders;
Court Rule 5:7A. DOMESTIC VIOLENCE: RESTRAINING ORDERS (a) Application for
Temporary Restraining Order except as provided in paragraph (b) herein, an
applicant for a temporary restraining order shall appear before a judge
personally to testify upon the record or by sworn complaint submitted pursuant
to N.J.S.A. 2C:25-28. If it appears that the applicant is in danger of domestic
violence, the judge shall, upon consideration of the applicant's domestic
violence affidavit, complaint or testimony, order emergency relief including ex
parte relief, in the nature of a temporary restraining order as authorized by
N.J.S.A. 2C:25-17 et seq. (b) Issuance of Temporary Restraining Order by
Electronic Communication. A judge may issue a temporary restraining order upon
sworn oral testimony of an applicant who is not physically present. Such sworn
oral testimony may be communicated to the judge by telephone, radio or other
means of electronic communication. The judge or law enforcement officer
assisting the applicant shall contemporaneously record such sworn oral
testimony by means of a tape-recording device or stenographic machine if such
are available; otherwise, adequate long hand notes summarizing what is said
shall be made by the judge. Subsequent to taking the oath, the applicant must
identify himself or herself, specify the purpose of the request and disclose
the basis of the application. This sworn testimony shall be deemed to be an
affidavit for the purposes of issuance of a temporary restraining order. A
temporary restraining order may issue if the judge is satisfied that exigent
circumstances exist sufficient to excuse the failure of the applicant to appear
personally and that sufficient grounds for granting the application have been
shown. Upon issuance of the temporary restraining order, the judge shall
memorialize the specific terms of the order and shall direct the law
enforcement officer assisting the applicant to enter the judge's authorization
verbatim on a form, or other appropriate paper, designated the duplicate
original temporary restraining order. This order shall be deemed a temporary
restraining order for the purpose of N.J.S.A. 2C:25-28. The judge shall direct
the law enforcement officer assisting applicant to print the judge's name on
the temporary restraining order. The judge shall also contemporaneously record
factual determinations. Contemporaneously the judge shall issue a written
confirmatory order and shall enter thereon the exact time of issuance of the
duplicate order. In all other respects, the method of issuance and contents of
the order shall be that required by sub-section (a) of this rule. (c) Temporary
Restraining Order. In court proceedings instituted under the Prevention of
Domestic Violence Act of 1990, the judge shall issue a temporary restraining
order when the applicant appears to be in danger of domestic violence. The
order may be issued ex parte when necessary to protect the life, health, or
well-being of a victim on whose behalf the relief is sought. (d) Final
Restraining Order. A final order restraining a defendant shall be issued only
on a specific finding of domestic violence or on a stipulation by a defendant to
the commission of an act or acts of domestic violence as defined by the
statute. (e) Procedure Upon Arrest Without a Warrant. Whenever a law
enforcement officer has effected an arrest without a warrant on a criminal
complaint brought for a violation otherwise defined as an offense under the
Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., bail may be set
and a complaint-warrant may be issued pursuant to the procedures prescribed in
R 3:4-1(b). (f) Venue in Domestic Violence Proceedings. Venue in domestic
violence actions shall be laid in the county where either of the parties
resides, in the county where the domestic violence offense took place, or in
the county where the victim of domestic violence is sheltered. If the action is
not brought in a county of residence, venue shall be transferred to a county of
residence for the final hearing unless the court orders the matter retained in
the county where the complaint is filed for good cause shown. The following is
the NJ Statute on Restraining Orders and Domestic Violence Matters 2C:25-17.
Short title 1. This act shall be known and may be cited as the "Prevention
of Domestic Violence Act of 1991." 2C:25-18. Findings, declarations 2. The
Legislature finds and declares that domestic violence is a serious crime
against society; that there are thousands of persons in this State who are
regularly beaten, tortured and in some cases even killed by their spouses or
cohabitants; that a significant number of women who are assaulted are pregnant;
that victims of domestic violence come from all social and economic backgrounds
and ethnic groups; that there is a positive correlation between spousal abuse
and child abuse; and that children, even when they are not themselves
physically assaulted, suffer deep and lasting emotional effects from exposure
to domestic violence. It is therefore, the intent of the Legislature to assure
the victims of domestic violence the maximum protection from abuse the law can
provide. The Legislature further finds and declares that the health and welfare
of some of its most vulnerable citizens, the elderly and disabled, are at risk
because of incidents of reported and unreported domestic violence, abuse and
neglect which are known to include acts which victimize the elderly and disabled
emotionally, psychologically, physically and financially; because of age,
disabilities or infirmities, this group of citizens frequently must rely on the
aid and support of others; while the institutionalized elderly are protected
under P.L. 1977, c.239 (C. 52:27G-1 et seq.), elderly and disabled adults in
non institutionalized or community settings may find themselves victimized by
family members or others upon whom they feel compelled to depend. The
Legislature further finds and declares that violence against the elderly and
disabled, including criminal neglect of the elderly and disabled under section
1 of P.L. 1989, c.23 (C. 2C:24-8), must be recognized and addressed on an equal
basis as violence against spouses and children in order to fulfill our responsibility
as a society to protect those who are less able to protect themselves. The
Legislature further finds and declares that even though many of the existing
criminal statutes are applicable to acts of domestic violence, previous
societal attitudes concerning domestic violence have affected the response of
our law enforcement and judicial systems, resulting in these acts receiving
different treatment from similar crimes when they occur in a domestic context.
The Legislature finds that battered adults presently experience substantial
difficulty in gaining access to protection from the judicial system,
particularly due to that system's inability to generate a prompt response in an
emergency situation. It is the intent of the Legislature to stress that the
primary duty of a law enforcement officer when responding to a domestic
violence call is to enforce the laws allegedly violated and to protect the
victim. Further, it is the responsibility of the courts to protect victims of
violence that occurs in a family or family-like setting by providing access to
both emergent and long-term civil and criminal remedies and sanctions, and by
ordering those remedies and sanctions that are available to assure the safety
of the victims and the public. To that end, the Legislature encourages the
training of all police and judicial personnel in the procedures and enforcement
of this act, and about the social and psychological context in which domestic
violence occurs; and it further encourages the broad application of the
remedies available under this act in the civil and criminal courts of this
State. It is further intended that the official response to domestic violence
shall communicate the attitude that violent behavior will not be excused or
tolerated, and shall make clear the fact that the existing criminal laws and
civil remedies created under this act will be enforced without regard to the
fact that the violence grows out of a domestic situation. 2C:25-21.1 Rules,
regulations concerning weapons prohibitions and domestic violence. The Attorney
General may adopt, pursuant to the "Administrative Procedure Act,"
P.L. 1968, c.410 (C. 52:14B-1 et seq.), rules and regulations necessary and
appropriate to implement this act.
2C:25-22. Immunity from civil liability A law enforcement
officer or a member of a domestic crisis team or any person who, in good faith,
reports a possible incident of domestic violence to the police shall not be
held liable in any civil action brought by any party for an arrest based on
probable cause, enforcement in good faith of a court order, or any other act or
omission in good faith under this act.
2C:25-23. Dissemination of notice to victim of
domestic violence 7. A law enforcement officer shall disseminate and explain to
the victim the following notice, which shall be written in both English and
Spanish: "You have the right to go to court to get an order called a
temporary restraining order, also called a TRO, which may protect you from more
abuse by your attacker. The officer who handed you this card can tell you how
to get a TRO. The kinds of things a judge can order in a TRO may include: (1)
That your attacker is temporarily forbidden from entering the home you live in;
(2) That your attacker is temporarily forbidden
from having contact with you or your relatives;
(3) That your attacker is temporarily forbidden
from bothering you at work;
(4) That your attacker has to pay temporary child
support or support for you;
(5) That you be given temporary custody of your
children;
(6) That your attacker pay you back any money you
have to spend for medical treatment or repairs because of the violence. There
are other things the court can order, and the court clerk will explain the
procedure to you and will help you fill out the papers for a TRO.
You also have the right to file a criminal
complaint against your attacker. The police officer who gave you this paper
will tell you how to file a criminal complaint. On weekends, holidays and other
times when the courts are closed, you still have a right to get a TRO. The
police officer who gave you this paper can help you get in touch with a judge
who can give you a TRO." 2C:25-24 Domestic violence offense reports. 8.
a. It shall be the duty of a law enforcement
officer who responds to a domestic violence call to complete a domestic
violence offense report. All information contained in the domestic violence
offense report shall be forwarded to the appropriate county bureau of
identification and to the State bureau of records and identification in the
Division of State Police in the Department of Law and Public Safety. A copy of
the domestic violence offense report shall be forwarded to the municipal court
where the offense was committed unless the case has been transferred to the
Superior Court. b. The domestic violence offense report shall be on a form
prescribed by the supervisor of the State bureau of records and identification
which shall include, but not be limited to, the following information:
(1)The relationship of the parties;
(2)The sex of the parties;
(3)The time and date of the incident;
(4)The number of domestic violence calls
investigated;
(5)Whether children were involved, or whether the
alleged act of domestic violence had been committed in the presence of
children;
(6)The type and extent of abuse;
(7)The number and type of weapons involved;
(8)The action taken by the law enforcement officer;
(9)The existence of any prior court orders issued
pursuant to this act concerning the parties;
(10) The number of domestic violence calls alleging
a violation of a domestic violence restraining order;
(11) The number of arrests for a violation of a
domestic violence order; and
(12) Any other data that may be necessary for a
complete analysis of all circumstances leading to the alleged incident of
domestic violence. c. It shall be the duty of the Superintendent of the State
Police with the assistance of the Division of Systems and Communications in the
Department of Law and Public Safety to compile and report annually to the
Governor, the Legislature and the Advisory Council on Domestic Violence on the
tabulated data from the domestic violence offense reports, classified by county
2C:25-25. Criminal complaints; proceedings 9. The court in a criminal complaint
arising from a domestic violence incident: a. Shall not dismiss any charge or
delay disposition of a case because of concurrent dissolution of a marriage,
other civil proceedings, or because the victim has left the residence to avoid
further incidents of domestic violence; b. Shall not require proof that either
party is seeking a dissolution of a marriage prior to institution of criminal
proceedings; c. Shall waive any requirement that the victim's location be
disclosed to any person.
2C:25-26 Release of defendant before trial;
conditions. 10. a. When a defendant charged with a crime or offense involving
domestic violence is released from custody before trial on bail or personal
recognizance, the court authorizing the release may as a condition of release
issue an order prohibiting the defendant from having any contact with the
victim including, but not limited to, restraining the defendant from entering
the victim's residence, place of employment or business, or school, and from
harassing or stalking the victim or victim's relatives in any way. The court
may enter an order prohibiting the defendant from possessing any firearm or
other weapon enumerated in subsection r. of N.J.S. 2C:39-1 and ordering the
search for and seizure of any such weapon at any location where the judge has
reasonable cause to believe the weapon is located. The judge shall state with
specificity the reasons for and scope of the search and seizure authorized by
the order. b. The written court order releasing the defendant shall contain the
court's directives specifically restricting the defendant's ability to have
contact with the victim or the victim's friends, co-workers or relatives. The
clerk of the court or other person designated by the court shall provide a copy
of this order to the victim forthwith. c. The victim's location shall remain
confidential and shall not appear on any documents or records to which the
defendant has access. d. Before bail is set, the defendant's prior record shall
be considered by the court. The court shall also conduct a search of the
domestic violence central registry. Bail shall be set as soon as it is
feasible, but in all cases within 24 hours of arrest. e. Once bail is set it
shall not be reduced without prior notice to the county prosecutor and the
victim. Bail shall not be reduced by a judge other than the judge who
originally ordered bail, unless the reasons for the amount of the original bail
are available to the judge who reduces the bail and are set forth in the
record. f. A victim shall not be prohibited from applying for, and a court
shall not be prohibited from issuing, temporary restraints pursuant to this act
because the victim has charged any person with commission of a criminal act.
2C:25-26.1. Notification of victim of release of
defendant 1. Notwithstanding any other provision of law to the contrary, whenever
a defendant charged with a crime or an offense involving domestic violence is
released from custody the prosecuting agency shall notify the victim.
2C:25-27 Conditions of sentencing of defendant
found guilty of domestic violence. 11. When a defendant is found guilty of a
crime or offense involving domestic violence and a condition of sentence
restricts the defendant's ability to have contact with the victim, that
condition shall be recorded in an order of the court and a written copy of that
order shall be provided to the victim by the clerk of the court or other person
designated by the court. In addition to restricting a defendant's ability to
have contact with the victim, the court may require the defendant to receive
professional counseling from either a private source or a source appointed by
the court, and if the court so orders, the court shall require the defendant to
provide documentation of attendance at the professional counseling. In any case
where the court order contains a requirement that the defendant receive
professional counseling, no application by the defendant to dissolve the
restraining order shall be granted unless, in addition to any other provisions
required by law or conditions ordered by the court, the defendant has completed
all required attendance at such counseling.
2C:25-28 Filing complaint alleging domestic
violence in Family Part; proceedings. 12. a. A victim may file a complaint
alleging the commission of an act of domestic violence with the Family Part of
the Chancery Division of the Superior Court in conformity with the Rules of
Court. The court shall not dismiss any complaint or delay disposition of a case
because the victim has left the residence to avoid further incidents of
domestic violence. Filing a complaint pursuant to this section shall not
prevent the filing of a criminal complaint for the same act. On weekends,
holidays and other times when the court is closed, a victim may file a
complaint before a judge of the Family Part of the Chancery Division of the Superior
Court or a municipal court judge who shall be assigned to accept complaints and
issue emergency, ex parte relief in the form of temporary restraining orders
pursuant to this act. A plaintiff may apply for relief under this section in a
court having jurisdiction over the place where the alleged act of domestic
violence occurred, where the defendant resides, or where the plaintiff resides
or is sheltered, and the court shall follow the same procedures applicable to
other emergency applications. Criminal complaints filed pursuant to this act
shall be investigated and prosecuted in the jurisdiction where the offense is
alleged to have occurred. Contempt complaints filed pursuant to N.J.S. 2C:29-9
shall be prosecuted in the county where the contempt is alleged to have been
committed and a copy of the contempt complaint shall be forwarded to the court
that issued the order alleged to have been violated. b. The court shall waive
any requirement that the petitioner's place of residence appear on the
complaint. c. The clerk of the court, or other person designated by the court,
shall assist the parties in completing any forms necessary for the filing of a
summons, complaint, answer or other pleading. d. Summons and complaint forms
shall be readily available at the clerk's office, at the municipal courts and
at municipal and State police stations. e. As soon as the domestic violence
complaint is filed, both the victim and the abuser shall be advised of any
programs or services available for advice and counseling. f. A plaintiff may
seek emergency, ex parte relief in the nature of a temporary restraining order.
A municipal court judge or a judge of the Family Part of the Chancery Division
of the Superior Court may enter an ex parte order when necessary to protect the
life, health or well-being of a victim on whose behalf the relief is sought. g.
If it appears that the plaintiff is in danger of domestic violence, the judge
shall, upon consideration of the plaintiff's domestic violence complaint, order
emergency ex parte relief, in the nature of a temporary restraining order. A
decision shall be made by the judge regarding the emergency relief forthwith.
h. A judge may issue a temporary restraining order upon sworn testimony or
complaint of an applicant who is not physically present, pursuant to court
rules, or by a person who represents a person who is physically or mentally
incapable of filing personally. A temporary restraining order may be issued if
the judge is satisfied that exigent circumstances exist sufficient to excuse
the failure of the applicant to appear personally and that sufficient grounds
for granting the application have been shown. i. An order for emergency, ex
parte relief shall be granted upon good cause shown and shall remain in effect
until a judge of the Family Part issues a further order. Any temporary order
hereunder is immediately appealable for a plenary hearing de novo not on the
record before any judge of the Family Part of the county in which the plaintiff
resides or is sheltered if that judge issued the temporary order or has access
to the reasons for the issuance of the temporary order and sets forth in the
record the reasons for the modification or dissolution. The denial of a
temporary restraining order by a municipal court judge and subsequent
administrative dismissal of the complaint shall not bar the victim from
refiling a complaint in the Family Part based on the same incident and
receiving an emergency, ex parte hearing de novo not on the record before a
Family Part judge, and every denial of relief by a municipal court judge shall
so state. j. Emergency relief may include forbidding the defendant from
returning to the scene of the domestic violence, forbidding the defendant from
possessing any firearm or other weapon enumerated in subsection r. of N.J.S.
2C:39-1, ordering the search for and seizure of any such weapon at any location
where the judge has reasonable cause to believe the weapon is located and the
seizure of any firearms purchaser identification card or permit to purchase a handgun
issued to the defendant and any other appropriate relief. The judge shall state
with specificity the reasons for and scope of the search and seizure authorized
by the order. The provisions of this subsection prohibiting a defendant from
possessing a firearm or other weapon shall not apply to any law enforcement
officer while actually on duty, or to any member of the Armed Forces of the
United States or member of the National Guard while actually on duty or
traveling to or from an authorized place of duty. k. The judge may permit the
defendant to return to the scene of the domestic violence to pick up personal
belongings and effects but shall, in the order granting relief, restrict the
time and duration of such permission and provide for police supervision of such
visit. l. An order granting emergency relief, together with the complaint or
complaints, shall immediately be forwarded to the appropriate law enforcement
agency for service on the defendant, and to the police of the municipality in
which the plaintiff resides or is sheltered, and shall immediately be served
upon the defendant by the police, except that an order issued during regular
court hours may be forwarded to the sheriff for immediate service upon the
defendant in accordance with the Rules of Court. If personal service cannot be
effected upon the defendant, the court may order other appropriate substituted
service. At no time shall the plaintiff be asked or required to serve any order
on the defendant. m.(Deleted by amendment, P.L. 1994, c.94.) n. Notice of
temporary restraining orders issued pursuant to this section shall be sent by
the clerk of the court or other person designated by the court to the
appropriate chiefs of police, members of the State Police and any other
appropriate law enforcement agency or court. o.(Deleted by amendment, P.L.
1994, c.94.) p. Any temporary or permanent restraining order issued pursuant to
this act shall be in effect throughout the State, and shall be enforced by all
law enforcement officers. q. Prior to the issuance of any temporary or
permanent restraining order issued pursuant to this section, the court shall
order that a search be made of the domestic violence central registry with
regard to the defendant's record.
2C:25-28.1. In-house restraining order prohibited
2. Notwithstanding any provision of P.L. 1991, c.261 (C. 2C:25-17 et seq.) to
the contrary, no order issued by the Family Part of the Chancery Division of
the Superior Court pursuant to section 12 or section 13 of P.L. 1991, c.261 (C.
2C:25-28 or 2C:25-29) regarding emergency, temporary or final relief shall
include an in-house restraining order which permits the victim and the
defendant to occupy the same premises but limits the defendant's use of that
premises.
2C:25-29 Hearing procedure; relief. 13. a. A
hearing shall be held in the Family Part of the Chancery Division of the
Superior Court within 10 days of the filing of a complaint pursuant to section
12 of P.L. 1991, c.261 (C. 2C:25-28) in the county where the ex parte
restraints were ordered, unless good cause is shown for the hearing to be held
elsewhere. A copy of the complaint shall be served on the defendant in
conformity with the Rules of Court. If a criminal complaint arising out of the
same incident which is the subject matter of a complaint brought under P.L.
1981, c.426 (C. 2C:25-1 et seq.) or P.L. 1991, c.261 (C. 2C:25-17 et seq.) has
been filed, testimony given by the plaintiff or defendant in the domestic
violence matter shall not be used in the simultaneous or subsequent criminal
proceeding against the defendant, other than domestic violence contempt matters
and where it would otherwise be admissible hearsay under the rules of evidence
that govern where a party is unavailable. At the hearing the standard for
proving the allegations in the complaint shall be by a preponderance of the
evidence. The court shall consider but not be limited to the following factors:
(1)The previous history of domestic violence
between the plaintiff and defendant, including threats, harassment and physical
abuse;
(2)The existence of immediate danger to person or
property;
(3)The financial circumstances of the plaintiff and
defendant;
(4)The best interests of the victim and any child;
(5)In determining custody and parenting time the
protection of the victim's safety; and
(6)The existence of a verifiable order of
protection from another jurisdiction. An order issued under this act shall only
restrain or provide damages payable from a person against whom a complaint has
been filed under this act and only after a finding or an admission is made that
an act of domestic violence was committed by that person. The issue of whether
or not a violation of this act occurred, including an act of contempt under
this act, shall not be subject to mediation or negotiation in any form. In
addition, where a temporary or final order has been issued pursuant to this
act, no party shall be ordered to participate in mediation on the issue of
custody or parenting time.
b. In proceedings in which complaints for
restraining orders have been filed, the court shall grant any relief necessary
to prevent further abuse. In addition to any other provisions, any restraining
order issued by the court shall bar the defendant from purchasing, owning,
possessing or controlling a firearm and from receiving or retaining a firearms
purchaser identification card or permit to purchase a handgun pursuant to
N.J.S. 2C:58-3 during the period in which the restraining order is in effect or
two years whichever is greater, except that this provision shall not apply to
any law enforcement officer while actually on duty, or to any member of the
Armed Forces of the United States or member of the National Guard while
actually on duty or traveling to or from an authorized place of duty. At the
hearing the judge of the Family Part of the Chancery Division of the Superior
Court may issue an order granting any or all of the following relief:
(1) An order restraining the defendant from
subjecting the victim to domestic violence, as defined in this act.
(2) An order granting exclusive possession to the
plaintiff of the residence or household regardless of whether the residence or
household is jointly or solely owned by the parties or jointly or solely leased
by the parties. This order shall not in any manner affect title or interest to
any real property held by either party or both jointly. If it is not possible
for the victim to remain in the residence, the court may order the defendant to
pay the victim's rent at a residence other than the one previously shared by
the parties if the defendant is found to have a duty to support the victim and
the victim requires alternative housing.
(3) An order providing for parenting time. The
order shall protect the safety and well-being of the plaintiff and minor
children and shall specify the place and frequency of parenting time. Parenting
time arrangements shall not compromise any other remedy provided by the court
by requiring or encouraging contact between the plaintiff and defendant. Orders
for parenting time may include a designation of a place of parenting time away
from the plaintiff, the participation of a third party, or supervised parenting
time. (a) The court shall consider a request by a custodial parent who has been
subjected to domestic violence by a person with parenting time rights to a
child in the parent's custody for an investigation or evaluation by the
appropriate agency to assess the risk of harm to the child prior to the entry
of a parenting time order. Any denial of such a request must be on the record
and shall only be made if the judge finds the request to be arbitrary or
capricious. (b) The court shall consider suspension of the parenting time order
and hold an emergency hearing upon an application made by the plaintiff
certifying under oath that the defendant's access to the child pursuant to the
parenting time order has threatened the safety and well-being of the child.
(4) An order requiring the defendant to pay to the
victim monetary compensation for losses suffered as a direct result of the act
of domestic violence. The order may require the defendant to pay the victim
directly, to reimburse the Victims of Crime Compensation Board for any and all
compensation paid by the Victims of Crime Compensation Board directly to or on
behalf of the victim, and may require that the defendant reimburse any parties
that may have compensated the victim, as the court may determine. Compensatory
losses shall include, but not be limited to, loss of earnings or other support,
including child or spousal support, out-of-pocket losses for injuries
sustained, cost of repair or replacement of real or personal property damaged
or destroyed or taken by the defendant, cost of counseling for the victim,
moving or other travel expenses, reasonable attorney's fees, court costs, and
compensation for pain and suffering. Where appropriate, punitive damages may be
awarded in addition to compensatory damages.
(5) An order requiring the defendant to receive
professional domestic violence counseling from either a private source or a
source appointed by the court and, in that event, requiring the defendant to
provide the court at specified intervals with documentation of attendance at
the professional counseling. The court may order the defendant to pay for the
professional counseling. No application by the defendant to dissolve a final
order which contains a requirement for attendance at professional counseling
pursuant to this paragraph shall be granted by the court unless, in addition to
any other provisions required by law or conditions ordered by the court, the
defendant has completed all required attendance at such counseling.
(6) An order 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 and requiring the
defendant to stay away from any specified place that is named in the order and
is frequented regularly by the victim or other family or household members.
(7) An order restraining the defendant from making
contact with the plaintiff or others, including an order forbidding the
defendant from personally or through an agent initiating any communication
likely to cause annoyance or alarm including, but not limited to, personal,
written, or telephone contact with the victim or other family members, or their
employers, employees, or fellow workers, or others with whom communication
would be likely to cause annoyance or alarm to the victim.
(8) An order 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; provided that this issue has not been resolved or
is not being litigated between the parties in another action.
(9) An order granting either party temporary
possession of specified personal property, such as an automobile, checkbook,
documentation of health insurance, an identification document, a key, and other
personal effects.
(10) An order awarding emergency monetary relief,
including emergency support for minor children, to the victim and other
dependents, if any. An ongoing obligation of support shall be determined at a
later date pursuant to applicable law.
(11) An order awarding temporary custody of a minor
child. The court shall presume that the best interests of the child are served
by an award of custody to the non-abusive parent.
(12) An order requiring that a law enforcement
officer accompany either party to the residence or any shared business premises
to supervise the removal of personal belongings in order to ensure the personal
safety of the plaintiff when a restraining order has been issued. This order
shall be restricted in duration.
(13) (Deleted by amendment, P.L. 1995, c.242).
(14) An order granting any other appropriate relief
for the plaintiff and dependent children, provided that the plaintiff consents
to such relief, including relief requested by the plaintiff at the final
hearing, whether or not the plaintiff requested such relief at the time of the
granting of the initial emergency order.
(15) An order that requires that the defendant
report to the intake unit of the Family Part of the Chancery Division of the
Superior Court for monitoring of any other provision of the order.
(16) In addition to the order required by this
subsection prohibiting the defendant from possessing any firearm, the court may
also issue an order prohibiting the defendant from possessing any other weapon
enumerated in subsection r. of N.J.S. 2C:39-1 and ordering the search for and
seizure of any firearm or other weapon at any location where the judge has
reasonable cause to believe the weapon is located. The judge shall state with
specificity the reasons for and scope of the search and seizure authorized by
the order.
(17) An order prohibiting the defendant from
stalking or following, or threatening to harm, to stalk or to follow, the
complainant or any other person named in the order in a manner that, taken in
the context of past actions of the defendant, would put the complainant in
reasonable fear that the defendant would cause the death or injury of the
complainant or any other person. Behavior prohibited under this act includes,
but is not limited to, behavior prohibited under the provisions of P.L. 1992,
c.209 (C. 2C:12-10).
(18) An order requiring the defendant to undergo a
psychiatric evaluation. c. Notice of orders issued pursuant to this section
shall be sent by the clerk of the Family Part of the Chancery Division of the
Superior Court or other person designated by the court to the appropriate
chiefs of police, members of the State Police and any other appropriate law
enforcement agency. d. Upon good cause shown, any final order may be dissolved
or modified upon application to the Family Part of the Chancery Division of the
Superior Court, but only if the judge who dissolves or modifies the order is
the same judge who entered the order, or has available a complete record of the
hearing or hearings on which the order was based. e. Prior to the issuance of
any order pursuant to this section, the court shall order that a search be made
of the domestic violence central registry. 2C:25-29.1 Civil penalty for certain
domestic violence offenders. 1. In addition to any other disposition, any
person found by the court in a final hearing pursuant to section 13 of P.L.
1991, c.261 (C. 2C:25-29) to have committed an act of domestic violence shall
be ordered by the court to pay a civil penalty of at least $50, but not to
exceed $500. In imposing this civil penalty, the court shall take into
consideration the nature and degree of injury suffered by the victim. The court
may waive the penalty in cases of extreme financial hardship. 2C:25-29.2
Collection, distribution of civil penalties collected. 2. All civil penalties
imposed pursuant to section 1 of P.L. 2001, c.195 (C. 2C:25-29.1) shall be
collected as provided by the Rules of Court. All moneys collected shall be
forwarded to the Domestic Violence Victims' Fund established pursuant to
section 3 of P.L. 2001, c.195 (C.30:14-15). 2C:25-29.3 Rules of Court. 4. The
Supreme Court may promulgate Rules of Court to effectuate the purposes of this
act. 2C:25-29.4 Surcharge for domestic violence offender to fund grants. 50. In
addition to any other penalty, fine or charge imposed pursuant to law, a person
convicted of an act of domestic violence, as that term is defined by subsection
a. of section 3 of P.L. 1991, c.261 (C. 2C:25-19), shall be subject to a
surcharge in the amount of $100 payable to the Treasurer of the State of New
Jersey for use by the Department of Human Services to fund grants for domestic
violence prevention, training and assessment.
2C:25-30. Violations, penalties 14. Except as
provided below, a violation by the defendant of an order issued pursuant to this
act shall constitute an offense under subsection b. of N.J.S. 2C:29-9 and each
order shall so state. All contempt proceedings conducted pursuant to N.J.S.
2C:29-9 involving domestic violence orders, other than those constituting
indictable offenses, shall be heard by the Family Part of the Chancery Division
of the Superior Court. All contempt proceedings brought pursuant to P.L. 1991,
c.261 (C. 2C:25-17 et seq.) shall be subject to any rules or guidelines
established by the Supreme Court to guarantee the prompt disposition of
criminal matters. Additionally, and notwithstanding the term of imprisonment
provided in N.J.S. 2C:43-8, any person convicted of a second or subsequent non
indictable domestic violence contempt offense shall serve a minimum term of not
less than 30 days. Orders entered pursuant to paragraphs (3), (4), (5), (8) and
(9) of subsection b. of section 13 of this act shall be excluded from
enforcement under subsection b. of N.J.S. 2C:29-9; however, violations of these
orders may be enforced in a civil or criminal action initiated by the plaintiff
or by the court, on its own motion, pursuant to applicable court rules.
2C:25-31 Contempt, law enforcement procedures. 15.
Where a law enforcement officer finds that there is probable cause that a defendant
has committed contempt of an order entered pursuant to the provisions of P.L.
1981, c.426 (C. 2C:25-1 et seq.) or P.L. 1991, c.261 (C. 2C:25-17 et seq.), the
defendant shall be arrested and taken into custody by a law enforcement
officer. The law enforcement officer shall follow these procedures: The law
enforcement officer shall transport the defendant to the police station or such
other place as the law enforcement officer shall determine is proper. The law
enforcement officer shall: a. Conduct a search of the domestic violence central
registry and sign a complaint concerning the incident which gave rise to the
contempt charge; b. Telephone or communicate in person or by facsimile with the
appropriate judge assigned pursuant to this act and request bail be set on the
contempt charge; c. If the defendant is unable to meet the bail set, take the
necessary steps to insure that the defendant shall be incarcerated at police
headquarters or at the county jail; and d. During regular court hours, the defendant
shall have bail set by a Superior Court judge that day. On weekends, holidays
and other times when the court is closed, the officer shall arrange to have the
clerk of the Family Part notified on the next working day of the new complaint,
the amount of bail, the defendant's whereabouts and all other necessary
details. In addition, if a municipal court judge set the bail, the arresting
officer shall notify the clerk of that municipal court of this information.
2C:25-32. Alleged contempt, complainant's procedure
16. Where a person alleges that a defendant has committed contempt of an order
entered pursuant to the provisions of P.L. 1981, c.426 (C. 2C:25-1 et seq.) or
P.L. 1991, c.261, but where a law enforcement officer has found that there is
not probable cause sufficient to arrest the defendant, the law enforcement
officer shall advise the complainant of the procedure for completing and
signing a criminal complaint alleging a violation of N.J.S. 2C:29-9. During
regular court hours, the assistance of the clerk of the Family Part of the
Chancery Division of the Superior Court shall be made available to such
complainants. Nothing in this section shall be construed to prevent the court
from granting any other emergency relief it deems necessary.
2C:25-33 Records of applications for relief;
reports; confidentiality; forms. 17. a. The Administrative Office of the Courts
shall, with the assistance of the Attorney General and the county prosecutors,
maintain a uniform record of all applications for relief pursuant to sections
9, 10, 11, 12, and 13 of P.L. 1991, c.261 (C. 2C:25-25, C. 2C:25-26, C.
2C:25-27, C. 2C:25-28, and C. 2C:25-29). The record shall include the following
information: (1)The number of criminal and civil complaints filed in all municipal
courts and the Superior Court; (2)The sex of the parties; (3)The relationship
of the parties; (4)The relief sought or the offense charged, or both; (5)The
nature of the relief granted or penalty imposed, or both, including, but not
limited to, the following: (a)custody; (b)child support; (c)the specific
restraints ordered; (d)any requirements or conditions imposed pursuant to
paragraphs (1) through (18) of subsection b. of section 13 of P.L. 1991, c.261
(C. 2C:25-29), including but not limited to professional counseling or
psychiatric evaluations; (6)The effective date of each order issued; and (7)In
the case of a civil action in which no permanent restraints are entered, or in
the case of a criminal matter that does not proceed to trial, the reason or reasons
for the disposition. It shall be the duty of the Director of the Administrative
Office of the Courts to compile and report annually to the Governor, the
Legislature and the Advisory Council on Domestic Violence on the data tabulated
from the records of these orders. All records maintained pursuant to this act
shall be confidential and shall not be made available to any individual or
institution except as otherwise provided by law. b. In addition to the
provisions of subsection a. of this section, the Administrative Office of the
Courts shall, with the assistance of the Attorney General and the county
prosecutors, create and maintain uniform forms to record sentencing, bail
conditions and dismissals. The forms shall be used by the Superior Court and by
every municipal court to record any order in a case brought pursuant to this
act. Such recording shall include but not be limited to, the specific
restraints ordered, any requirements or conditions imposed on the defendant,
and any conditions of bail.
2C:25-34 Domestic violence restraining orders,
central registry. 1. The Administrative Office of the Courts shall establish
and maintain a central registry of all persons who have had domestic violence
restraining orders entered against them, all persons who have been charged with
a crime or offense involving domestic violence, and all persons who have been
charged with a violation of a court order involving domestic violence. All
records made pursuant to this section shall be kept confidential and shall be released
only to: a. A public agency authorized to investigate a report of domestic
violence; b. A police or other law enforcement agency investigating a report of
domestic violence, or conducting a background investigation involving a
person's application for a firearm permit or employment as a police or law
enforcement officer or for any other purpose authorized by law or the Supreme
Court of the State of New Jersey; c. A court, upon its finding that access to
such records may be necessary for determination of an issue before the court;
or d. A surrogate, in that person's official capacity as deputy clerk of the
Superior Court, in order to prepare documents that may be necessary for a court
to determine an issue in an adoption proceeding. Any individual, agency,
surrogate or court which receives from the Administrative Office of the Courts
the records referred to in this section shall keep such records and reports, or
parts thereof, confidential and shall not disseminate or disclose such records
and reports, or parts thereof; provided that nothing in this section shall
prohibit a receiving individual, agency, surrogate or court from disclosing
records and reports, or parts thereof, in a manner consistent with and in
furtherance of the purpose for which the records and reports or parts thereof
were received. Any individual who disseminates or discloses a record or report,
or parts thereof, of the central registry, for a purpose other than
investigating a report of domestic violence, conducting a background investigation
involving a person's application for a firearm permit or employment as a police
or law enforcement officer, making a determination of an issue before the
court, or for any other purpose other than that which is authorized by law or
the Supreme Court of the State of New Jersey, shall be guilty of a crime of the
fourth degree.
2C:25-35 Rules of Court concerning central registry
for domestic violence. 7. The Supreme Court of New Jersey may adopt Rules of
Court appropriate or necessary to effectuate the purposes of this act.
PORTIONS OF THIS ARTICLE WERE PUBLISHED BY MR.
VERCAMMEN IN THE NEW JERSEY LAWYER, THE STATE'S LARGEST LEGAL PUBLICATION.
KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave.
Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell
the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit
to random drug and urine testing. If you violate Probation, you often go to
jail.
4. In indictable matters, you will be required to
provide a DNA sample, which could be used by law enforcement for the
investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds
there is a victim who has suffered a loss and if the court finds that you are
able or will be able in the future to pay restitution.
6. If you are a public office holder or employee,
you can be required to forfeit your office or job by virtue of your plea of
guilty.
7. If you are not a United States citizen or
national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first
offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of
$500-$1,000, and lose your driver's license for 6 months - 2years. You must pay
a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes
Compensation Board assessment of $50 ($100 minimum if you are convicted of a
crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services
Fund assessment for each conviction.
14. If you are being sentenced to probation, you
must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration
in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal
offense is not impossible. There are a number of viable defenses and arguments
which can be pursued to achieve a successful result. Advocacy, commitment, and
persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal
offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the
first degree, for a specific term of years which shall be fixed by the court
and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree,
for a specific term of years which shall be fixed by the court and shall be
between five years and 10 years;
(3) In the case of a crime of the third degree, for
a specific term of years which shall be fixed by the court and shall be between
three years and five years;
(4) In the case of a crime of the fourth degree,
for a specific term which shall be fixed by the court and shall not exceed 18
months.
2C:43-3 Fines have been increased recently!
2C:43-3. Fines and Restitutions. A person who has been convicted of an offense
may be sentenced to pay a fine, to make restitution, or both, such fine not to
exceed:
a. (1) $200,000.00 when the conviction is of a
crime of the first degree;
(2) $150,000.00 when the conviction is of a crime
of the second degree;
b. (1) $15,000.00 when the conviction is of a crime
of the third degree;
(2) $10,000.00 when the conviction is of a crime of
the fourth degree;
c. $1,000.00, when the conviction is of a
disorderly persons offense;
d. $500.00, when the conviction is of a petty
disorderly persons offense;
If facing any criminal charge, retain an experienced attorney
immediately to determine you rights and obligations to the court. Current
criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
