Entry of Restraining Order

While in the past we have blogged on the topic of what acts constitute domestic violence, a blog about how trial judges approach and analyze whether or not a retaining order is necessary seems appropriate. Recently, in the unpublished decision of L.N. v. B.R.S., the Appellate Division noted that after the Court finds that an act of domestic violence occurred, the Court must take a “stop, look, and listen approach” in determining whether a domestic violence final restraining order should be entered. In this dual-element test, entry of a domestic violence restraining order is not automatic if the plaintiff proves an act of domestic violence occurred. Silver v. Silver, 387 N.J. Super. 112 (App.Div. 2006); Corrente v. Corrente, 281 N.J. Super. 248 (App.Div. 1995). The plaintiff must also prove that issuance of a restraining order is required to protect the plaintiff from future acts or threats of violence.

Assuming that a plaintiff has proven that an act of domestic violence has occurred, what analysis does the Judge take in determining whether or not a restraining order is necessary to protect the plaintiff from further domestic violence? The Courts must look to the Prevention of Domestic Violence Act which provides:

 

The Court shall consider but not be limited to the following facts:

 

(1)        The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

 

(2) The existence of immediate danger to person or property;

 

(3) The financial circumstances of the plaintiff and defendant;

 

(4) The best interests of the victim and child;

 

(5) In determining custody and parenting time the protection of the victim’s safety; and

 

(6) The existence of a verifiable order of protection from another jurisdiction.

 

N.J.S.A. 2C:25-29 (a); See also Silver v. Silver, 387 N.J. Super. 112 (App.Div. 2006).

 

 

Continue Reading The "Stop, Look, and Listen" Approach for Issuance of a Domestic Violence Restraining Order