It is important to understand the requirements to obtain a Final Restraining Order or to defend against the entry of one.  Through case law and the New Jersey legislature, there are specific requirements that need to be met.  In the recent unpublished decision, the Court reaffirms that both litigants and attorneys cannot stray away from the basic tenets to obtain a Final Restraining Order (“FRO”).   In M.H. v. J.B., the Appellate Division reversed the entry of the FRO because none of the requirements were met.

In M.H. v. J.B., an unpublished decision, meaning non-precedential, the parties are sisters-in-laws – the Plaintiff is married to the Defendant’s brother, but had apparently never lived together. The two parties argued via text message over the Plaintiff’s son’s (the Defendant’s nephew’s) birthday party. The Plaintiff failed to answer the Defendant’s phone calls and the Defendant proceeded to text the Plaintiff and the Plaintiff immediately responded. This continued for a period of twenty minutes. A couple of hours later, the Plaintiff reinitiated the conversation where the Defendant responded to “stop harassing [her] and [her] family”. Then, the Plaintiff, once again, reinitiated further conversation and the Defendant asked in six different messages for the Plaintiff to stop texting her.

Both parties obtained Temporary Restraining Orders against the other the next day, alleging harassment. Both parties submitted that they were former household members pursuant to the PDVA. The trial court entered a Final Restraining Order against the Defendant, finding that although there was no prior history of domestic violence between the two parties, found that the Defendant or through a third person attempted to contact the Plaintiff “repeatedly”. Additionally, the court found that the FRO was necessary “to protect the welfare and safety of the victim” as the parties had “bad blood” between them. The Plaintiff’s only allegation was that she feared  the Defendant.

Here, the Appellate Court found that none of the factors were present for a FRO to be entered.  To obtain a FRO the following must all be met: (1) a relationship within the meaning of the Protection Against Domestic Violence Act (“PDVA”); (2) a finding that an act of domestic violence occurred as listed within the PDVA; and (3) that a restraining order is necessary to protect the victim “from an immediate danger or to prevent further abuse.” Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006).

First, the Plaintiff’s testimony was clear that the parties never lived in the same household at the same time as the Defendant. Although the Defendant contended that the Plaintiff lived at the Defendant’s mother’s house, this does not equate that the two parties resided there at the same time. Therefore, the parties did not meet the definition as former household members under the PDVA. Although the parties’ allegations may have been sufficient for the court to entertain the parties’ applications, the trial court failed to engage in any jurisdictional analysis to determine whether these parties met the definition of former household members.  This was a fatal flaw.

Second, the Appellate Division did not find that the text messages constituted as a predicate act of harassment as contemplated under the PDVA for entry of a FRO. Without a finding of a predicate act, the court cannot move to the second prong of Silver to determine whether a restraining order is necessary to protect the victim. Notwithstanding this factor, the trial court failed to engage in any analysis that a restraining order was necessary to protect the Plaintiff from immediate danger or future harm from the Defendant. In fact, the parties agreed that they had a good relationship prior to the texting incident. There were no prior incidents of domestic violence between the parties; the Plaintiff made no claims that she was in physical fear or danger of the Defendant; and the Plaintiff’s sole allegation was fear of the Defendant. Thus, the Appellate Division found that a restraining order was not necessary to protect the Plaintiff and reversed the entry of the FRO.

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