At the time of a break-up of a relationship, clearly emotions are high, it is contentious and people often do or say things that they normally would not. Unfortunately, during this time period where many feel like they are on an emotional roller coaster, the tension escalates to the point where one party has filed a Complaint for Domestic Violence as a result of the actions and/or comments of the other party and the Court enters a Final Restraining Order. Once the emotional roller coaster ride stops, does the defendant have the ability to ask that the Restraining Order be dismissed? The answer is yes but the more important inquiry is whether or not such request will be granted.
In New Jersey, either party to a Domestic Violence Restraining Order may request dismissal of the Restraining Order by way of Motion filed with the Court. The New Jersey Prevention of Domestic Violence Act states that “Upon good cause shown, any final restraining order may be dissolved or modified upon application to the Family Part…” N.J.S.A. 2C:25-29d. In other words, simply asking for a dismissal– even if you are the plaintiff or the victim– does not automatically warrant a dismissal of the Restraining Order.
If the Defendant files the Motion to dismiss the Restraining Order, there are eleven factors for the Court to consider when determining whether or not “good cause” exists to dismiss a Restraining Order: the victim’s consent; current relationship of the parties; number of contempt convictions; use of drugs or alcohol; whether defendant is violent with others; whether the aggressor attends counseling; age and health of the aggressor; whether the victim is acting in “good faith” when opposing the dismissal; whether there are any other domestic violence restraining orders between the parties in other jurisdictions; and any other relevant considerations relevant to dismissal of the Restraining Order.
If the Plaintiff is the party making a request for dismissal, before any dismissal is entered, the Court must discern whether the plaintiff is seeking the dismissal voluntarily, without coercion or duress; if the plaintiff understands the cycle of violence that occurs in the domestic violence setting; and if the plaintiff understands the loss of protection if the Restraining Order is dismissed.
Notably, regardless of whether or not Plaintiff consents to, wants to have and does have communication with a defendant to a Restraining order, unless the Court has dismissed the Restraining Order, it remains in full force and effect.
Accordingly, depending upon the situation at the time of the entry of the Restraining Order and the underlying facts resulting in entry of the Restraining Order and the current situation, a Defendant may consider seeking dismissal of a Restraining Order. This is especially the case if the Restraining Order was entered shortly after the parties break-up, a reasonable amount of time has lapsed, and there have been no contempt proceedings. By way of example, I represented a client who had a Final Restraining Order entered against her during her divorce proceedings. The divorce proceedings were very emotionally charged especially because the husband had an affair with one of her close friends. Needless to say, my client was very upset and sometimes very confrontational during this phase. Notably, prior to and after the divorce proceedings, she was actually a very private, quiet and rational person. Once the divorce was completed and after three years since entry of the Domestic Violence Restraining Order and the emotions had long since died down, she found it increasingly difficult to have the Restraining Order in place because she and her ex-husband were very involved in their children’s school and extracurricular activities. Notably, there had never been any contempt proceedings nor any other problems between the parties since entry of the Final Judgment of Divorce and the Final Restraining Order. We therefore filed a Motion to dismiss the Restraining Order which, based upon the facts, was granted. (Readers should not misconstrue the comments in this blog as encouraging dismissal of Restraining Orders or requesting dismissals of Restraining Orders in all circumstances. There are many cases in which it would be absolutely inappropriate to dismiss a Restraining Order especially those that involve violent behavior.)
The Appellate Division recently rendered an unpublished decision indicating that upon filing a Motion to dismiss a Restraining Order if the Court finds that there are factual disputes between the parties, the Court must complete a mini-trial (“plenary hearing”) before making any determination. O.N. v. R.N. (App. Div. decided September 23, 2009). Thus, before filing such application, the defendant must make a thorough analysis with his or her attorney of the eleven factors cited above and weigh the merits of their particular dismissal request. In some cases, defendants are found to use the Motion to Dismiss as a means to harass the victim. Therefore, it is important to first complete an analysis of the factual circumstances to be relied upon in seeking a dismissal and the likelihood that the dismissal will be granted.