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PRACTICE TIP #7: Never make a dissolution application without the defendant obtaining domestic violence counseling. If these incidents do exist, the attorney must obtain full knowledge of what happened and be prepared to explain why it would have no bearing on the dissolution application. Factor 7 Whether the Defendant has Engaged in Domestic Violence Counseling: A 1999 amendment to the statute now makes clear that “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…the defendant has completed all required attendance at such counseling.” N. Therefore, counseling is necessary to demonstrate to the court that it is dealing with a changed person, a person who takes seriously the charges and a person who has obtained treatment for the problem that brought about the improper conduct to begin with. Practitioners should be certain to be aware of complaints, police reports, or other claims of violent acts that can be alleged against the defendant. Assembly Task Force on Domestic Violence, Findings and Recommendations, (Recommendation #25– July 1998). Assuming there have been no acts of contempt or incidents of violence against the victim, attorneys must also explore the other relationships of the defendant since the FRO. Many believe that counseling should be mandatory for any person found to have committed an act of domestic violence. Nevertheless, the factors represent a road map for establishing good cause. Factor 1 Consent of the Victim to Lift the Order: As already noted, the most common way for a FRO to be dissolved is upon the consent of the victim. For this reason it makes for a stronger application to be able to inform the court that the application is necessary for some reason outside of the defendant wanting to have contact with the victim. a defendant seeking employment in law enforcement). Demonstrating that an alcohol or drug problem that motivated the act of domestic violence now no longer exists, serves to support an application for dissolution.
2001) (FRO not disputed by defendant is reversed as complaint did not state an act of domestic violence). This article will examine the law regarding the dissolution of domestic violence orders without the consent of the victim and will provide practice tips for successfully making these applications. Obtaining the Complete Record “Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part, 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.” N. The “complete record” has been defined to include the transcript of the final hearing as well as a copy of the original complaint and final order. To date, the statute and the case law have not defined that burden. Defendants are not automatically entitled to a plenary hearing regarding these applications. Rather, the moving party has the burden to make a prima facie showing that good cause exists for dissolution of the FRO. No less than the New Jersey Supreme Court has recognized that “in the area of domestic violence…some people may attempt to use the process as a sword rather than a shield.” State v. If it can be demonstrated that the victim is not acting in good faith, this will provide strong support for a dissolution application. Factor 10 Orders Entered by Other Jurisdictions: The Violence Against Women Act of 1994, directs that all states give full faith and credit to sister-state protection order. These jurisdictions require victims to return to court after the passage of time to justify the continuation of the FROs. XVI: Conclusion Applications to dissolve FROs without the consent of victims are likely to become more commonplace in the near future.
These transgressions viewed years later away from the heated battle of litigation, may indeed cast doubt on whether the victim has objective fear of the defendant. Factor 3 Nature of the Relationship Between the Parties Today: The trial court must determine whether the current relationship between the parties places the victim in a position where the defendant can still exercise control and dominion if the FRO is dissolved. 1997) (“there is nothing in the statute to suggest that victims are entitled to less protection than others by virtue of the employment or personal situation of the defendant.”). Factor 4 Contempt Convictions: Practitioners must determine whether their client has ever violated the FRO. Especially, during the period after issuance of an ex parte TRO, defendants (many of whom are having their first experience with the legal system) do not appreciate the gravity of their actions.
For example, we all have seen restraining orders entered for a host of minor transgressions that can occur during the intensity of contested litigation. (Defendant placed a note and a rose in plaintiff’s purse and pursued her after she announced her intention to break up with him).
PRACTICE TIP #1: Practitioners should make it a policy to order a transcript of the final hearing (or at least advise clients of the need to order a transcript) at the time of the entry of the FRO. In 1995, Judge Dilts wrote what has become the most important opinion on the subject of good cause. The dissolution application is not an opportunity to have a rehearing on the FRO. Rather it is a process of demonstrating “what has changed.” As stated by the Appellate Division, “the linchpin in any motion addressed to dismissal of a FRO should be whether there have been substantial changed circumstances since its entry that constitute good cause for consideration of dismissal.” Kanaszka at 609. Factor 8 Age/health of the Defendant An argument for dissolution can be made if the defendant is infirm or of an age that makes the defendant no longer a threat to the victim.
It took almost 14 years for the first published case to define the good cause standard. The defendant who seeks to dissolve the restraints because the FRO was a “bum rap” will not prevail.
Preface Since 1981, New Jersey courts have been entering final restraining orders (FROs) under the Prevention of Domestic Violence Act. Prior to 1993, restraints were routinely entered without a requirement that the defendant admit to any fault or wrongdoing. In this regard, it is worth recalling that in-house restraining orders were being granted as late as 1995.