More than 11 years ago, I wrote a post on this blog entitled The Abuse and Misuse of the Domestic Violence Statute. From the statistics, we can see that this is still one of the most read items we have published, because the problem remains 11 + years later.  I concluded that post by stating:

At the end of the day, the domestic violence statute is an important and necessary tool to protect victims of domestic violence.  That said, it should be real victims and not maliciously motivated litigants seeking to get a leg up in their divorce or custody proceedings.

We still see improper requests for temporary restraining orders (TRO) all of the time.  Because they are so easy to get, we see them used as leverage for the divorce case, custody case and/or some other improper purpse all of the time.  What’s worse, is that once an improvidently granted final restraining order (FRO) is granted, it is very difficult to get them reversed on appeal or vacated in post judgment motion practice.

However, in the interesting case of A.J. C. v. G.A.C.,  an unreported (non-precedential) Appellate Division decision released on December 8, 2020, the Appellate Division affirmed the the trial court’s dissolution of the FRO.  What makes the matter interesting was that the plaintiff argued that she still required the FRO for her protection, despite maintaining a sexual relationship with the defendant after the entry of the FRO.  In fact, the plaintiff was caught on a recording calling the FRO, a “… loaded weapon . . . that I can pull and point at you at any time … No, the FRO is like a gun. ” as justification as to why she wasn’t presently afraid of the defendant (the recording was made during one of the sexual encounters, by the way.)

The Appellate Division gave a primer on the law as to vacating an FRO, as follows:

“With protection of the victim the primary objective, the court must carefully scrutinize the record and carefully consider the totality of the circumstances before removing the protective shield.” Kanaszka v. Kunen, 313 N.J. Super. 600, 605 (App. Div. 1998). In Kanaszka, we adopted Carfagno’s non-exclusive list of eleven factors that trial courts consider when determining
whether good cause has been shown. Id. at 607. Those factors, which are to be weighed “qualitatively, and not quantitatively,” Carfagno, 288 N.J. Super. at 442, include:

1) whether the victim consented to lift the restraining order; 2) whether the victim fears the defendant; 3) the nature of the relationship between the parties today; 4) the number of times that the defendant has been convicted of contempt for violating the order; 5) whether the defendant has a continuing involvement with drug or alcohol abuse; 6) whether the defendant has been involved in other violent acts with other persons; 7) whether the defendant has engaged in counseling; 8) the age and health of the defendant; 9) whether the victim is acting in good faith when opposing the defendant’s request; 10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and 11) other factors deemed relevant by the court.

In this case, the trial court found that the plaintiff did not objectively fear the defendant; and that the plaintiff did not act in good faith when opposing defendant’s request to vacate the FRO.  Of significant import, the Appellate Division noted:

Regarding factor two, plaintiff’s lack of objective fear, the court found that “there are several issues that point to [her] failure to sustain this factor.” Specifically, the court referenced plaintiff’s “repeated liaisons with [defendant]” and her comments that she had “sex with [defendant] because ‘she trusts him.'” The court further noted that plaintiff referred to the FRO as a “loaded gun” and that she “repeatedly refuse[d]” to enforce the FRO against him.

The court also relied on these facts in its determination that the plaintiff did not act in good faith under factor nine. Indeed, the court reiterated that “[i]nstead of violating [defendant] for . . . alleged violations [of the FRO], [plaintiff] [did] nothing. She carrie[d] on an eight-month relationship, even showing up at [defendant’s] door only dressed in a raincoat. And now she takes the position that she needs the [FRO].” The court also equated the plaintiff’s reference to the FRO as a “loaded gun” to “what is commonly referred to as using [the FRO] as a sword and not a shield.”

This case really doesn’t seem like a close call.  One simply cannot use the threat of arrest for violating a restraining order to keep someone in line while they continue their physical relationship.  One would think that a person is either scared or they are not.  Either way, it seems as though justice was done in this instance.

Eric S. Solotoff, Partner, Fox Rothschild LLPEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or