Restraining Orders and Necessity (Part 1)

by | Aug 20, 2023 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On April 6, 2023, a three-judge appellate panel decided the Camden County case of J.D. v. A.M.W. The principal issue before the Court under N.J.S.A. 2C:25-29 concerned the “necessity” requirement of a final restraining order (FRO).

Judge Smith wrote for the Appellate Division in relevant part: On appeal, plaintiff contends the trial court erred when it concluded plaintiff failed to satisfy her burden under the second prong of Silver. Plaintiff submits the trial court should not have relied on factors such as “safeguards” provided by plaintiff’s new husband and defendant’s father, and any protections plaintiff may have had under prior civil restraints. Plaintiff further argues the court erred when it stated defendant “now gets it,” making assumptions about defendant’s state of mind at the hearing despite having no basis to make such an assessment. Finally, plaintiff posits the FRO hearing testimony about the predicate act, combined with her fear of defendant and the prior history of domestic violence, is enough to satisfy both prongs under Silver. We agree.

This decision could encourage additional restraining order litigation. In theory, that could be a good thing since the protection of domestic violence victims is a worthy goal. In practice, the decision will likely encourage unnecessary litigation. The reality is that many people who are truly in need of restraining orders are too scared to request them. On the other hand, restraining orders are too often used by plaintiffs who have no real concerns for their safety, but are instead looking to gain an advantage in a related divorce proceeding. Once a temporary restraining order (TRO) issues, the plaintiff typically takes sole custody of the marital home. The defendant is often left to pay the related costs while the divorce proceeding slowly unfolds. At the same time, judges are inclined to grant restraining orders since erring on the side of the alleged victim is the “safe” thing to do.