Restraining Order Defense #3.
“Challenge The Reasonable Fear For Safety”
“In order to obtain a Final Restraining Order (FRO) in New Jersey, a plaintiff must prove by a preponderance of the evidence that he or she is in fear for their safety, that the fear is reasonable, and that they need the protection of the courts.”
Bergen County Restraining Order Attorneys with offices in Hackensack, New Jersey
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Fear for Safety
The final element necessary to have a restraining order issued is to show that the victim in the case is reasonable to be in fear for their safety based on your actions. Even if one abusive incident in conjunction with a history of incidents are proven, this does not necessarily mean that a reasonable fear for one’s safety exists.
For example, if the defendant in a restraining order case has consistently called the victim a “fat pig” and made a history of harassing phone calls consistently calling her names. This shows both a history of harassment and single incident of harassment.
However, is it reasonable and logical for the complaining party to be in fear for her safety?
Just because he was calling her names doesn’t mean any threats were made and doesn’t prove that she should be afraid of him. There is a lot of grey area in this argument, and it’s all about what one can prove.
If threatening voice mails or texts have been sent, if witnesses have heard threats, or if there has been a history of injurious action to the complaining party, then there could be a good case for a restraining order. If there has only been a consistent streak of harassing phone calls, one could certainly file criminal charges for harassment, but the case doesn’t convey any reasonable reason for the alleged victim to be afraid for his or her safety.
As a result, the judge overseeing the matter has to make a judgment call on whether or not this person truly needs the protection provided by a restraining order. Casting doubt in this respect is another way that I defend against restraining order cases.
The key case when it comes to restraining order matters in NJ was decided in Silver v. Silver. The Appellate Division ruled that, in addition to proving a predicate act of domestic violence occurred, the court must also find that the defendant poses an immediate or future danger to the plaintiff.”
How does the Judge determine reasonable fear?
Obviously, whether or not a reasonable person would be in fear is very subjective and up to the Judge. However, there are a few important factors the Judge will look at when considering whether or not the Plaintiff met their burden at trial.
- How bad was the predicate act of violence? If the victim was severely assaulted or the Defendant threatened to kill the Plaintiff or their family, then a reasonable person in the victim’s position would clearly be afraid and need the protection that a restraining order provides. If, on the other hand, there was a minor scuffle over a cell phone or if the parties just recently broke up and the Defendant reached out to the Plaintiff to express his love and that he wanted to get back together, then that “harassment” or “assault” would not lead a reasonable person to be in fear and need protection.
- How credible is the Plaintiff on the stand in court? The Judge will observe the Plaintiff’s mannerisms and demeanor on the stand and see if they are crying, upset, afraid, etc. The Judge will also observe the Defendant and see if he or she is aggressive, scary, cursing, violent, etc. These observations will be key in judging the credibility of both parties and ultimately deciding if a restraining order is necessary in this case.
For more information regarding temporary restraining orders (TRO) or final restraining orders (FRO) in NJ, contact our NJ restraining order lawyers with offices in Morristown, Hackensack, and Newark at 201-556-1571. The initial consultation is always provided free of charge.
Here are some real life cases that our NJ restraining order attorneys successfully handled for our clients:
- Bergen County NJ restraining order dismissed
- Hackensack NJ restraining order lawyers
- Restraining order dismissed in Morristown, NJ
- Warren County NJ restraining order trial attorneys
Restraining Order Defense Strategies:
#1. Challenge the predicate act
#2. Challenge the prior history of domestic violence
Restraining Order Info and Overview
Basic Restraining Order Information
Restraining Order Vs. No Contact Order
