Converting a Temporary Restraining Order into a Final Restraining Order, Requires Proof of a Predicate Act of Domestic Violence
Docket No. A-0826-20
Decided December 7, 2021
Submitted by New Jersey Divorce Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey remanded a trial court’s entry of a Final Restraining Order (FRO) due to the Court’s lack of legal analysis as to whether the restraining order was necessary for the plaintiff’s protection.
In C.R.D., the parties were married in 2008, separated in 2011, and divorced thereafter. They had one child, M.D. (Mary), born in 2010. Pursuant to the terms of a final custody order, defendant was afforded parenting time on alternate weekends and certain weekdays.
By all accounts, the relationship between plaintiff and defendant was contentious. The genesis of their dispute that precipitated the filing of the present domestic violence complaint arose at the conclusion of defendant’s parenting time with Mary on September 13, 2020. Not surprisingly, the parties’ accounts of the incident were diametrically opposed.
Plaintiff testified he became upset because defendant frequently made him wait up to a half-hour on pick up days for Mary. Defendant immediately yelled at plaintiff upon arrival. Plaintiff walked away, then defendant smacked him upside his head, across his face, shoved him, then grabbed a stick and swung it across his chest and at his knee.
Defendant claims plaintiff insulted her and he was furious. Plaintiff threw a punch at her face that missed. Plaintiff attempted to fight her boyfriend. In response, defendant struck plaintiff with a sugarcane once.
The trial court found that defendant committed the predicate act of assault when hitting plaintiff with the stick. The trial court also found the restraining order to be necessary for plaintiff’s protection. Defendant appealed and the Appellate Division remanded because the trial court failed to elaborate on whether the restraining order was necessary and failed to include the parties’ history of domestic violence.
This opinion is important to understand the Judge’s role in assessing an application for an FRO. In order for a plaintiff to convert a Temporary Restraining Order into a Final Restraining Order, they must prove a predicate act of domestic violence, and that the restraining order is necessary to prevent future acts of domestic violence. If plaintiff fails to prove either of these by a preponderance of the evidence, the restraining order will be dismissed.
If you have a TRO against someone else or against yourself, contact the experienced attorneys at Hark & Hark today. At Hark & Hark, we help clients with prenups, divorce, custody, domestic violence, child support, alimony, adoptions and more.
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