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Dissolving a Domestic Violence Restraining Order
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."
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).
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.
To file for divorce in New Jersey under no-fault grounds, the couple must have been living separate and apart in different residences for at least 18 consecutive months. There must be no hope of reconciliation in the marriage.
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