The other day I was sitting in a Court room waiting for my Domestic Violence trial to be called. The room was filled with domestic violence Plaintiffs and Defendants. Since the list was quite long, I decided to wait outside the Court room with my clients. Outside the Courtroom were more Domestic Violence Plaintiffs and Defendants many with their attorneys. As I sat and waited, I watched the hustle and bustle among the the attorneys and litigants. Clearly, many of them were negotiating a "Civil Restraining Order".
A "Civil Restraining Order" is an Order that precludes communications by one or both of the parties. However, while a Civil Restraining Order may prohibit all forms of communications by a party, enforcement and sanctions of a violation of that Order is quite different than a Restraining Order entered under the New Jersey Prevention of Domestic Violence Act. If a party violates a Civil Restraining Order, to enforce the Order and obtain sanctions against the the party, a Motion will have to be filed and the facts underlying the alleged violation must be presented to the Court. Generally, these types of Motions are not heard on an emergent basis, can take four to six weeks to be heard and the relief granted will not include incarceration. The violation is not considered criminal in nature. In the case of a Restraining Order under the Prevention of Domestic Violence Act, a defendant could be immediately arrested at the scene for violating the terms of the Restraining Order. Moreover, the sanctions imposed are criminal in nature and accordingly, a defendant may be more apt to avoid violating the Order because it comes with criminal implications.
So why were all those litigants and their attorneys negotiating Civil Restraining Orders in the hallway of the Courtroom? There are a multitude of reasons. Some Plaintiffs may have had a weak case and would likely not obtain a Final Restraining Order. Some Defendants likely did not want to take the risk of having a Final Restraining Order against him or her and was willing to provide other concessions to get the Plaintiff to enter into a Civil Restraining order to to dismiss the Domestic Violence Complaint. Such concessions likely included leaving the marital home and residing elsewhere and providing monetary amounts to the Plaintiff for Plaintiff’s support and/or the children of the parties. For others, it was an opportunity to begin negotiating the terms of the parities’ separation and the terms of custody and parenting time with the parties’ children.
Clearly, in some cases, after a temporary Restraining Order has been obtained under the Prevention of Domestic Violence Act, it may be appropriate to attempt to negotiate dismissal of the Domestic Violence Complaint and to negotiate the terms of a Civil Restraining Order for the various reasons cited above. However, NEVER negotiate these types of agreements (1) without an attorney; (2) without first counseling with the domestic violence personnel at the Courthouse; (3) without it being in writing and (4) and most important, if you believe that your safety is being compromised.