How To Fight A Restraining Order In New Jersey

Restraining Order Defense Strategy #1.

“Challenge the predicate act of domestic violence”

Restraining Order Lawyers in Hackensack, Morristown, Newark NJ

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Restraining Orders New Jersey

There are three things that have to exist in order for a final restraining order to issue, and as a result, there are three ways that I can fight against restraining orders. If I can cast doubt on any of the three requirements for a restraining order, it will not be issued.

The first requirement is that some incident of abuse or harassment took place. This is known as a predicate act of domestic violence. It is not enough for an alleged victim to claim that something bad happened, they actually have to prove it. This can be established by showing pictures, potentially revealing email or cell phone correspondence, testimony from the victim or any potential witnesses, etc.

This is the first element that I have the opportunity to disprove in an attempt to get the restraining order thrown out. I can challenge the credibility of the witnesses, discredit any evidence that is admitted, and cross-examine the victim on any discrepancies with their version of the facts.

If the Judge finds that there was no predicate act of domestic violence, then the temporary restraining order (TRO) will be dismissed. Remember, a restraining order case is a civil matter in New Jersey, it is not criminal. As a result, the standard of proof is known as “by a preponderance of the evidence” which is a 51% standard also known as “more likely than not”.

NOTE: If a Plaintiff alleges three (3) acts of domestic violence occurred, for example, stalking, assault, and harassment, and the Judge only finds assault but not the other 2, this is sufficient to establish this element of proof. 

What are the predicate acts of domestic violence?

Under the Prevention of domestic violence act of 1991, there are 19 potential predicate acts of domestic violence including the following:

• Harassment (N.J.S.A. 2C:33-4)
• Cyber-harassment (N.J.S.A. 2C:15-1)
• Assault (N.J.S.A. 2C:12-1)
• Stalking (N.J.S.A. 2C:12-10, 2C:12-10.1)
• Terroristic threats (N.J.S.A. 2C:12-3)
• Criminal mischief (N.J.S.A. 2C:17-3)
• Criminal restraint (N.J.S.A. 2C:13-2)
• False imprisonment (N.J.S.A. 2C:13-3)
• Kidnapping (N.J.S.A. 2C:13-1)
• Burglary (N.J.S.A. 2C:18-2)
• Robbery (N.J.S.A. 2C:15-1)
• Criminal sexual contact (N.J.S.A. 2C:14-1, 2C:14-3)
• Sexual assault (N.J.S.A. 2C:14-1, 2C:14-2)
• Lewdness (N.J.S.A. 2C:14-4)
• Criminal trespass (N.J.S.A. 2C:18-3)
• Homicide (N.J.S.A. 2C:11-1 to 2C:11-4)
• Criminal Coercion (N.J.S.A. 2C:13-5)
• Contempt of a domestic violence restraining order (N.J.S.A. 2C:29-9)
• Any other crime involving risk of death or serious bodily injury

These crimes are all enumerated in the New Jersey criminal code and must be proven, by a preponderance of evidence, using those criminal laws and statutes.

Example of Predicate Act of Domestic Violence at Trial – Harassment

The most common predicate act of domestic violence used in NJ restraining order cases is harassment. Harassment is codified under the NJ criminal code under NJSA 2C:33-4 which provides in pertinent part:

2C:33-4 Harassment.

2C:33-4. Harassment.

Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, one or more communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

So, there are essentially three different ways to commit harassment in New Jersey:

1. Harassing communications anonymously, or an inconvenient hours, or in offensive language, or in any other manner likely to harass another
2. Offensive touching
3. Repeated conduct intended to harass another

When a Plaintiff attempts to prove harassment at a NJ restraining order trial, they will typically testify and admit evidence in an attempt to establish that they have been harassed by the Defendant. For example, they can show an alarming number of phone calls, emails, or text messages after the parties have broken up and the Plaintiff has made it clear they no longer want to be contacted. In addition, the nature of the communications is important. If the communications are nasty and offensive including swearing and name calling then it is easier to prove that the Defendant intended to harass the Plaintiff. However, there are other scenarios where the Plaintiff and the Defendant just recently broke up and the Defendant is contacting the Plaintiff in an attempt to reconcile and work things out. If the messages or calls are merely expressing his or her feelings for the other party and their wish to get back together, then there is no intent to harass and a reasonable person in the Plaintiff’s position would not be harassed by that. On the other hand, if the messages continue even after the Plaintiff has expressed the wish to be left alone and if there are numerous communications then the Judge may find that the Defendant has been harassing the Plaintiff.

The Judge will consider the testimony of the Plaintiff, the evidence presented by the Plaintiff, the testimony of the Defendant, and any evidence presented by the Defendant and then determine if harassment has been committed by a preponderance of the evidence (more likely than not – 51%). Remember, this is not the only element the Plaintiff must prove. Even if the Judge finds harassment, the Plaintiff still must show a prior history of violence and that they are in fear for their safety and need the protection that a restraining order provides in order to obtain a final restraining order in NJ.

Here are some real life restraining order cases that our NJ restraining order attorneys successfully handled for our clients:

• Essex County restraining order dismissed
• Restraining order lawyers in Morris County NJ
• Hudson County restraining order dismissed by judge after trial
• Lawyers for a restraining order in Warren County NJ

For more information, contact our NJ restraining order attorneys now for immediate assistance at 201-556-1570. The initial consultation is always provided free of charge.

Other Restraining Order Defense Strategies:

#2. Challenge the prior history of domestic violence
#3. Challenge the reasonable fear for safety.

Restraining Order Info and Overview

Basic Restraining Order Information
Restraining Order Vs. No Contact Order

Temporary Restraining Orders

Final Restraining Orders