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Dissolving a Domestic Violence Restraining Order
(provided by Theodore Sliwinski, Esq.)
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. They are told that they are no longer offered the restraints and protections of the Domestic Violence Act, but that they may still, in the future, apply for another restraining order if necessary. They are further informed as to the "cycle of domestic violence theory."
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 an application to 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, fear is 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. I separated from my wife, and she 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 Steven 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.
Information provided by:
Theodore Sliwinski, Esq. located at
http://www.divorcecenterofnj.com
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