Domestic Violence: Proving The Need For A Final Restraining Order
The New Jersey courts strive to take domestic violence seriously, and, in this pursuit, the courts evaluate every situation where domestic violence is alleged. In some cases, the courts find that even though a defendant may indeed have harassed another, there simply may not be a need for a final restraining order. What factors are taken into consideration when making this decision? A recent court case sheds some light
In the unpublished case of C.O. v. T.O, the appellate court did not agree with the lower court’s entry of a final restraining order against a husband, who admittedly sent his wife many text messages regarding their son, their mortgage and accusing her of drug use. The parties were going through a messy divorce, and there was questionable behavior on both their parts. The court granted a final restraining order against the husband, indicating that several of the text messages he sent rose to the level of harassment and could be seen as threatening to the wife.
However, the trial court did not address or make any findings regarding the wife’s need for the restraining order. Citing Silver v. Silver, the court stated that in order for a final restraining order to issue, the wife needed to prove that the husband committed an act of domestic violence and the need for the restraining order so that she is protected from immediate danger or to prevent further abuse from her husband. A judge must make a two-step inquiry: was there domestic violence and, if so, is a final restraining order necessary?
In C.O. v. T.O., the trial judge simply did not discuss the wife’s need for a final restraining order. The appellate court did not disagree with the judge that the text message were harassing to the wife. However, they sent the case back to the trial court for a rehearing to determine what if any evidence was presented by the wife that she needed the final restraints to protect her from further abuse.
The appellate court stated, “Given the lack of any finding as to prior incidents of domestic violence between this couple, the acrimony of their newly filed divorce action and the nature of the ‘threatening’ and ‘baseless’ text messages, our review of the cold record does not allow us to conclude the evidence was sufficient to support a finding that final restraints were necessary for plaintiff’s immediate protection or to prevent further abuse.
To be clear, the appellate court did not simply dismiss the restraining order. It dismissed the restraining order but ordered that the case be reheard by the trial court to see if there was evidence that the wife had a need for the restraints.
If you are a victim of domestic violence and are pursuing a restraining order, or if you have been falsely accused of domestic violence, we can help you get justice. Please contact us today to schedule your initial consultation to discuss your rights and the path to safety.
