The Appellate Division concluded with the following: Finally, after it denied the FRO, the court sought to impose a minimum distance requirement between the parties during their son’s sporting events and designate defendant’s father as the primary point of contact for the parties’ future communication. The court took these steps, in its words, to “prevent future dustups.”
In assessing plaintiff’s need for a restraining order under Silver‘s “second inquiry,” our courts conduct an evaluation of the statutory factors. A trial court must evaluate N.J.S.A. 2C:25-29(a)(1) to- 29(a)(6) in the context of whether the defendant is likely to continue his course of abusive behavior, not whether external factors might thwart his attempts. A court conducting an FRO hearing should not consider the capacity of third parties to protect a domestic violence victim from their abuser when assessing the need for protection under Silver’s “second inquiry.”
There is ample evidence in the record to show plaintiff requires an FRO to prevent further abuse by defendant. The predicate act of harassment, the history of domestic violence in the record, and defendant’s violations of the civil restraints lead us to conclude the trial court misapplied the law, and erred when it denied the FRO on this record.
The decision of the trial court is reversed and remanded for entry of an FRO. We do not retain jurisdiction.
The predicate act of harassment is a red flag that an FRO may not be necessary. Harassment is most-often based on name-calling and annoying behavior as opposed to physical violence. On the other hand, some FRO defendants can take harassment to such an extreme level that it justifies entry of a final restraining order. Since an FRO requires the forfeiture of fundamental Second Amendment rights and a host of other significant penalties, the cases in which “harassment” alone justifies an FRO should be the exception as opposed to the norm.