The Silver Test in New Jersey Restraining Order Cases

New Jersey’s Two Prong Approach to Determining the Need for a Final Restraining Order

What is Needed for a FRO in NJ There are multiple phases when someone seeks a restraining order in New Jersey, the first requiring less evidence than the second. Phase one, a victim of domestic violence may seek a temporary restraining order (TRO) to protect them and their family from further violence. Temporary restraining orders are issued virtually every day, as the necessary evidence required is low and the prioritization of safety for victims of true domestic abuse is important. Phase two, a hearing occurs to decide on the permanent necessity for protection. A judge will grant a final restraining order (FRO) once the plaintiff provides sufficient evidence that they are victims of one of the acts recognized as domestic violence under the Prevention of Domestic Violence Act, and that they need the restraining order for protection. In other words, a judge reviews the facts and decides whether domestic violence occurred, and if the victim needs the order for protection against immediate danger or continued abuse.

The Silver Test: How Judges Decide on Issuing Final Restraining Orders in New Jersey

New Jersey case law clarifies the two elements of proof for obtaining an FRO. The Silver test arose from the New Jersey case Silver v. Silver (2006), which explained the two-part test applicable to FROs. The first part requires proof that the defendant committed one of the predicate acts of the PDVA. The second part is the finding that the FRO is necessary for the plaintiff’s safety. A plaintiff needs an FRO when the defendant is a threat regarding present or future violence.

Prong 1: A Predicate Act of Domestic Violence

The predicate acts under the PDVA include 19 crimes of violence, confinement, harassment, threats, and invasions of the person or property. Thus, criminal restraint, kidnapping, and false imprisonment are crimes of detention, while assault, homicide, criminal sexual contact, burglary, and robbery are crimes of person and property. Other sex or harassment crimes include lewdness, sexual assault, criminal sexual contact, stalking, cyber harassment, criminal mischief, trespass, and coercion.

When these crimes occur between intimate relations, such as current or former spouses, partners, roommates, and dates, the actions constitute domestic violence. A plaintiff must prove with credible evidence that one or more of these acts occurred. For instance, if the plaintiff testifies in court that the defendant ex-spouse pushed them down on the couch and attempted to strangle them, testimony and photographic evidence of neck bruises may be convincing enough to support the first prong of the Silver test.

Prong 2: The Need for Protection from the Defendant

The second part, evidencing the need for protection from the defendant, may need further evidence. For example, testimonial evidence of the defendant’s other violent acts against the plaintiff may support the second prong, the need for a restraining order to protect the plaintiff from future danger. The plaintiff may present police reports or witnesses to the defendant’s previous abuse of the plaintiff. A history of violence or an extremely violent incident, even one, is evidence of endangerment, coupled with evidence of threats of future abuse or patterns that suggest repeated violence is likely.

The Case that Set the Standard for Analysis: Silver vs. Silver

The Silver Court dealt with a divorcing couple engaged in a bitter custody battle and supervised visitation. An altercation occurred between the parties as they waited for the appointed supervisors to show up for the mother’s visitation. The facts of what happened leading to a violent altercation are in dispute. Plaintiff husband claimed he called the defendant wife from his car at the drop off point, but she could not hear him. She then entered his vehicle, and a fight ensued. He told her to leave the car, but she did not. She claims he tried to choke her, and she scratched him to fend him off, while he claims she came after him, scratching and biting. The police went to the scene after the plaintiff called 911.

The trial court found both stories suspect but did acknowledge that the defendant’s wife trespassed in the vehicle and left wounds on the plaintiff. However, since neither party claimed a history of violence or abuse, the trial court dismissed the restraining order. On appeal, the court determined that a predicate act of domestic violence was established, despite the trial court’s factual findings on the domestic violence acts due to calling both sides suspect.

The Appellate Court discussed the second element of an FRO, the need for protection based on either a history of abuse or even one incident of domestic violence. In reviewing various cases, the court noted that prior domestic violence cases typically evidenced a “pattern of abusive and controlling behavior” but indicated that even one “egregious” predicate act of domestic violence may suffice to justify an FRO. The case was remanded to the trial court to determine the second prong, whether the FRO was necessary to protect the plaintiff from further violence.

The Judge Must Make Findings of Fact and Support their Conclusions on the Record

By focusing on the two parts to proving an FRO, the Silver Court set the standard test applicable to FROs, requiring a court to support its findings with facts. Had the trial court in Silver set forth which facts it relied upon to decide that a predicate act of domestic violence occurred, the record would have reflected the basis for the court’s decision in more than mere conclusions.

Failure to Provide a Judicial Explanation of the Findings May Provide Grounds to Appeal an FRO

A complete record detailing the facts supporting the two prongs helps Appellate Courts identify legal errors, if any. Essentially, the judge cannot simply make a decision as to whether to issue a final restraining order. They are required to detail their findings of fact and to support their legal conclusion with an outline of their reasoning. In other words, judges deciding restraining order cases must give an explanation for their decision to either dismiss the case, or make the temporary order permanent in order to protect the victim. If the trial court fails to detail its findings and support such findings on the record, this opens the door to appeal the final restraining order.

What Silver Offers Knowledgeable NJ Restraining Order Attorneys

The Silver analysis is a helpful guide to domestic violence attorneys assisting clients in meeting FRO requirements or defending against an FRO. An effective restraining order lawyer can tailor evidence presented at an FRO hearing to satisfy the Silver requirements, knowing they must prove a predicate act. In Silver, the evidence bore a finding of assault and trespass, as evidenced by photos and testimony of witnesses, establishing the first part of the Silver test.

Proving the second part requires proof of abuse patterns in the relationship or an extreme instance of abuse or violence. To establish an ongoing threat, an attorney can acquire police reports, photos, witness accounts, and hospital records to convince a judge about the defendant’s verbal and physical threats to the plaintiff’s safety. To disprove an ongoing threat, a skilled lawyer can raise the lack of domestic violence history. A mere allegation by the plaintiff that the defendant threatened further violence may not be enough. Lastly, if a judge fails to produce an adequate record, an attorney can potentially appeal the court’s decision.

Get Trusted Legal Guidance on Managing the Requirements for an FRO in NJ

With the help of our knowledgeable team at The Tormey Law Firm, you can defend or defeat a restraining order. Our lawyers know the law and how to convince a judge with evidence, or to effectively show the lack of evidence supporting an FRO. Contact our New Jersey law firm when you need a restraining order or are accused of domestic violence. Either way, our skilled legal professionals are prepared to do what it takes to obtain the outcome you need now. These cases move fast, so there is no time to delay in contacting the most experienced lawyer you can find to handle your restraining order case. Reach out to us 24/7 for immediate assistance and a free consultation at (201)-556-1570.


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