Restraining Orders and Necessity (Part 2)

by | Aug 22, 2023 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

After a court finds a predicate act of domestic violence under Silver, the second inquiry “is whether the court should enter a restraining order that provides protection for the victim.” The second inquiry “is most often perfunctory and self-evident,” and “the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)](1)-(6), to protect the victim from an immediate danger or to prevent further abuse.” In a domestic violence context, a court should regard any past history of abuse by a defendant as part of a plaintiff’s individual circumstances and, in turn, factor that history into its reasonable person determination.”

The trial court found no need for protection under the second prong of Silver because plaintiff has “safeguards in place from the prior order that she signed in regards to civil restraints” and that “there’s no immediate danger because we have defendant’s father there; he seems to be safeguarding it and plaintiff’s husband appeared to me to be very levelheaded.”

The trial court’s prong two findings raise several concerns. Its finding that plaintiff’s husband and defendant’s father can protect her from defendant is troubling, and ironically implies plaintiff has a need for protection. We note plaintiff’s husband and defendant’s father were unable to prevent defendant’s acts of domestic violence on August 29. Given that reality, we fail to understand what in the record caused the trial court to speculate that these individuals would successfully protect plaintiff in the future. We also note the court’s finding that the 2017 civil restraints still represented a “safeguard” for plaintiff is unsupported by the record.

Had the trial Court couched its concerns in terms of credibility findings, its decision would likely have been upheld on appeal. This is because great deference is extended to trial courts regarding credibility findings that cannot be gleaned from a transcript of the FRO trial.