New Jersey lawyers FAQs
Courtesy of New Jersey
LawSite member, Theodore Sliwinski, Esq.
1. What is the Prevention of Domestic Violence Act?
The Prevention of Domestic Violence Act applies to a person 18 years of age or older or a person who is an emancipated minor that has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. A "victim of domestic violence" also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child, or with whom the victim anticipates having a child, if one of the parties is pregnant. "Victim of domestic violence" also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.
This means you are a victim of domestic violence if you or the abuser are the parents of any children, whether or not you have ever lived together; you are pregnant with the abuser's child; you and the abuser now live together or have lived together in the past; or you and the abuser now have or did have, at one time, a dating relationship.
You and the abuser do not have to be married or girlfriend/boyfriend. He or she can be a family member, your gay or lesbian partner, your roommate, your caretaker, or any other adult who lives with you now or has lived with you.
2. How do I know if I am a victim of domestic violence under this law?
You are a victim of domestic violence if you have experienced any of the following from a person who is over the age of 18 or an emancipated minor:
1. beatings or physical attacks such as kicking, slapping, punching, pushing, hair pulling, or any other physical attack in any other way that causes you harm or fear of harm;
2. threats that make you fear serious injury to yourself or your children (example: "When I come home I'm going to kick you, punch the kids, hurt you.");
3. threats that make you fear for your life (example: "If you don't do what I tell you to do, I'm going to kill you.");
4. imprisonment within your own home or at another location (example: A person locks you in your home, in a room, in a closet, in an automobile, for any period of time);
5. kidnaping (example: You are taken against your will from your home, place of business, or anywhere else and not permitted to leave.);
6. sexually assaulted where you are forced to have sexual contact or raped under threats of harm to yourself or someone else. This can also include unwanted sexual touching or if the perpetrator exposes his genitals.;
7. damage to your personal property;
8. forced entry into your home, with or without a weapon;
9. theft of your personal belongings;
10. threats against you with a weapon such as a gun, knife, machete, baseball bat, or any other object that you feel can harm you;
11. repeated verbal humiliation and attacks (example: A person calls you obscene names, or calls you stupid, ignorant, dumb, ugly, or other disrespectful names);
12. stalking you by actions done more than one time that include maintaining you in his sight, repeatedly being in physical proximity to you, repeatedly conveying verbal or written threats or threats implied by his actions, or all of these actions, and these actions cause you to fear bodily injury to you or a member of your family or to fear the death of you or a member of your family.
3. Will anyone be arrested?
A police officer must arrest the person you state perpetrated the acts of domestic violence against you, even if you do not want her/him arrested and even if you do not want to file a complaint against the person who committed these acts, if: (1) you exhibit any signs of injury; (2) the perpetrator has violated a previous Domestic Violence Restraining Order; (3) there is probable cause that a weapon has been involved in the commission of the act of domestic violence; (4) there is a warrant for the abuser's arrest on any other charge.
A police officer may arrest the person who committed the act of domestic violence against you if you exhibit no visible signs of injury but you have told him/her what happened and have advised him/her that an injury has occurred. The injuries could be internal and painful or the injury could be on an area of your body that you do not feel comfortable exposing to the officer.
If you act with reasonable force to protect yourself from the attacker, and you and the attacker both show signs of injury, you should not be arrested or charged with a domestic violence offense. The officer at the scene should consider the nature and extent of the injuries, along with any previous history of reported domestic violence incidents.
It is very important for you to tell the police officer if weapons were used to injure you or threaten you, and where the weapons are located.
It is very important for you to tell the police officer what happened, what your injuries are and if there were previous acts of domestic violence against you by your attacker or previous reports of attacks, or if there is a Domestic Violence Order already in place.
4. What if a weapon was used during an act of domestic violence?
If a police officer at the scene has reason to believe a weapon was used during an act of domestic violence, the officer must arrest the suspect and seize any weapons on the premises that could expose you to further harm. The officer must also sign a criminal complaint in this instance.
Seized weapons are turned over to the county prosecutor's office. If the prosecutor does not institute a legal action within 45 days to retain the weapon(s) seized, they may be returned to the owner.
5. What should I do if I have a restraining order and my abuser still doesn't leave me alone?
If you have a Domestic Violence Restraining Order and your abuser violates the terms (example: mails a letter to you or has someone else deliver a letter to you; calls you on the telephone; appears at your place of work, home, school or restaurant where you are eating, and does not immediately leave when he sees you), call the police immediately. Have your copy of the restraining order ready to show the police. Your abuser can be arrested and jailed. You have the right to call the police as many times as you need to when you are in danger from your attacker, whether or not you have a Domestic Violence Restraining Order.
It is very important for you to carry a copy of the Domestic Violence Restraining Order with you at all times.
6. What if the police don't come fast enough or refuse to come?
You must be prepared when dealing with a violent person. You should have access to a telephone at all times. Carry a cell phone if possible. If you don't have a phone, try to establish a relationship with a neighbor or relative who will call the police for you when you need help. It is imperative that you tell a neighbor or relative about the violence for your protection and the protection of your children in the event that the police do not come or do not come fast enough.
If the police are taking too much time to respond and you remain in danger, call your local domestic violence hotline. A worker for the domestic violence hotline can put you on hold while someone calls the police and advocates on your behalf to respond quickly to your situation.
You should have a safety plan in the event that the police do not come or do not come quickly enough. If all else fails, draw on your own
resourcefulness either to escape the danger or attract attention by screaming for help or setting off the security alarm.
7. What legal remedies can I seek if I have been a victim of domestic violence?
You have the right to file a civil complaint under the Prevention of Domestic Violence Act, along with a criminal complaint. Both complaints should be filed for your protection since the civil complaint is designed to protect you and the criminal complaint is designed to punish the abuser.
8. What is a civil complaint?
In a civil action you are asking the court to resolve a conflict between you and the person abusing you. You are not asking the court to punish that person for breaking the law. One of the protections available to you in a civil action is a civil restraining order.
9. What is a civil restraining order?
A civil restraining order is a legally enforceable document that, among other things, limits the physical contact between you and the person abusing you. When you first sign a complaint for a restraining order, and if you meet all the criteria under the Prevention of Domestic Violence Act, you will receive a "Temporary Restraining Order" (TRO). The abuser will not have to be present to obtain the TRO. Within approximately 10 days you will appear in court at a hearing and tell the judge what happened to cause you to sign the complaint against your abuser and the judge will decide whether or not to give you a Final Restraining Order. The abuser will be present during this hearing, but sheriff's officers will protect you.
10. How can I get a temporary restraining order (TRO)?
Between the hours of 8:30 a.m. and 3:30 p.m., Monday through Friday, go to the court clerk in the Family Part of your county's Superior Court at the County Courthouse and tell a court employee that you are there to file a TRO. A family court intake employee will give you papers to fill out and ask you to describe what happened during the most recent domestic violence incident. You can ask if there is someone there who can assist you in preparing the papers, which contain a complaint and statement against your abuser. Ask the intake person to explain what will happen when you go into the courtroom.
On weekdays between 4 p.m. and 8:30 a.m. the next day, and on weekends and holidays, you must go to your police department to obtain a TRO through a municipal court judge. The police usually take the information for the complaint and call the judge to advise what has occurred. The judge may wish to speak to you on the phone. Then the judge will issue a TRO if he or she thinks you are in danger.
11. Who issues a temporary restraining order?
A TRO must be issued by a Domestic Violence Hearing Officer or by a judge from the municipal court or a judge from the Family Part of the Superior Court at the county courthouse.
If you are denied a TRO by a municipal court judge, you may immediately reapply (8:30 a.m. to 4 p.m., Monday through Friday) to the Family Part of the Superior Court based upon the same incident of domestic violence.
12. Where must I file for a temporary restraining order?
You may file in the county where the domestic violence occurred, where you live, where the abuser lives or where you are sheltered.
13. What do I put in the complaint?
It is very important that you carefully read each part of the complaint before completing it. You must list all facts of the incident that happened that made you file the complaint. For example, facts like: "hit; punched; threatened to kill me; cursed; pulled hair; burned with cigarettes; threw chair, knife, fork at me; followed me to work, home, school, store" should be included, if they happened.
If the abuser used a weapon to hurt or attempt to hurt you include this in the complaint.
It is also very important to include previous acts of violence/abuse against you in the complaint. Something else to include is if the abuser has a criminal history or if he has been arrested previously.
Under the section marked "Relief" read the requests carefully and then check or tell the intake worker to check the box that states what you want from the court. For example:
· That the abuser's weapons be seized.
· That the abuser is temporarily forbidden to have contact with you, your children, your relatives, and other people you identify as being at risk.
· That the abuser is temporarily forbidden to enter the location where the violence happened and the home you share with him.
· That you are granted sole possession of the home you shared with the abuser.
· That you are granted temporary sole custody of the children.
· That the abuser temporarily support you and your children.
· That you have temporary possession of a car, a key to the car and residence, a health insurance card, a checkbook, passport for yourself and your children, immigration documents, birth certificates, or other things you might need.
· That the abuser have either no visitation with the children or supervised visitation.
· That a risk evaluation be conducted before any visitation is ordered by the court if the children have been abused by the abuser.
· That the abuser pay you for any losses, such as moving expenses, lawyer's fees, medical bills, lost wages, or money spent to repair damage to your property.
· That the abuser pay for your pain and suffering.
· That the abuser be ordered to go to psychological counseling, counseling for substance abuse (alcohol/drugs) with a counselor who is a certified domestic violence counselor.
The intake worker or domestic violence advocate will assist you in completing the complaint. If there is no one to help you, you can fill it out yourself, but read it carefully to make sure you don't miss anything.
You will need the name and address of the abuser, and a description, along with his date of birth, social security number and the name and address of his employer if you know them. This information is necessary so the complaint can be served to the abuser.
14. Can I get a restraining order if I am sick and confined to bed, or if I have a physical or mental disability?
Yes. A judge may issue a TRO upon sworn testimony or complaint of a person who represents a person who is physically or mentally incapable of filing.
15. Where must I file for a temporary restraining order?
You may file in the county where the domestic violence occurred, where you live, where the abuser lives or where you are sheltered.
16. How long will I have to wait to see a judge?
There is no way to tell how long it will take for you to see a judge on any particular day. Go to the courthouse as early as possible. You may have to spend an entire work day at the courthouse, so notify your employer beforehand. Be prepared in the event your wait is a long one. Arrange for a safe place for your children to stay while you are in court.
17. What will I have to do when I file for my TRO through the police?
The police will help you file a written complaint that explains what happened. The police officer will call a judge and read your complaint. The judge should speak with you, and perhaps ask you a few more questions, before he or she decides whether or not to issue a TRO on your behalf. If your TRO is denied, call the hotline of your local domestic violence program for other options that are available to you. You are entitled to a review of this denial by a Superior Court judge. If you are denied a TRO and continue to feel unsafe at home, the domestic hotline can help make arrangements for you to stay in a safe place.
18. What happens if I receive a temporary restraining order at the courthouse or through the police and the municipal judge?
A TRO is a legal document. It will contain the orders of the judge. You will receive a copy that you are to keep in your possession at all times. The police department receives a copy, the court receives a copy, and the defendant must be served with notice that he or she is not allowed to have contact with you until the court schedules another hearing, usually within 10 days. At this second hearing, you and the abuser will have a chance to testify. The judge will consider both testimonies before issuing a Final Restraining Order.
19. What happens after I file the complaint and papers with the court and get a
The sheriff of your county will attempt to serve the abuser at the places you have told them they can find him. The abuser must be served with the papers so he or she knows to stay away from you and your children and others you have requested he or she stay away from in your complaint.
20. Will I have to go back to the court at any time?
Within 10 days of the date of the TRO you will have to appear in court for the final hearing. The abuser may also be in court at this time, and the judge will give him or her a chance to tell his or her side of the story. There will be protection for you in the courtroom and in the courthouse. If you are fearful because the abuser is there, tell the court officer. If you need an escort out of the Courthouse because you are afraid of the defendant, ask the court officer to get a sheriff's officer to escort you.
21. Do I have to go back to the court if I choose to dismiss the civil complaint?
YES. If you want to dismiss the civil complaint, you must go to court on the scheduled hearing date. You will be asked to explain your reasons for wanting to dismiss the complaint. The judge will want to know that you are doing this without threats or pressure from someone else. If the judge is convinced that this is your own decision, the complaint will be dismissed.
22. What will I need to bring with me to court?
At the time of the final hearing you should bring proof of the amount of money you need from the defendant as support if he or she has an obligation to support you. Proof includes: canceled checks or a lease or other documents that show the amount of your rent or mortgage, utility bills, the latest income tax returns or pay stubs and any other information to prove how much money you need from the abuser
23. Do I have to speak at the hearing?
At the final hearing you will tell the judge what the abuser did to you that caused you to file for a TRO. You will tell the judge if the abuser hit you, punched you, kicked you, pushed you, etc. If you are afraid of the abuser you will tell the judge this and why you are fearful. You will tell the judge about other times when the abuser hurt you or made you afraid or threatened you in any way. You must not be afraid of the judge because he or she is there to help you and to keep you safe from harm.
You will also tell the judge how much money you will need for support from the abuser if he or she has an obligation to support you and your children. You will show the judge the proof of how much you need for housing and food and other things for you and your children.
24. What steps do I take after I receive a final restraining order?
You will receive a copy of the Final Restraining Order after the hearing. It is important to keep a copy with you at all times. It is important that you do the following:
· Review the order before you leave the courtroom. If something is wrong or missing ask the court clerk to correct the order before you leave.
· Make several copies of the order to leave in safe places in case you need them. Keep one at your job, one at your home, one at your children's school, babysitter or day care program.
· Give a copy to a neighbor that you trust.
· Give a copy to friends or relatives who are named and protected in the order.
· Make sure your local police have a copy of the order.
· Give a copy to the security guard where you live or work.
· Change your locks as soon as possible.
· Change your telephone number as soon as possible to an unlisted number.
25. Do I also have the right to file a criminal complaint if I choose?
YES. A criminal complaint accuses the abuser of committing a crime. The New Jersey Prevention of Domestic Violence Act
lists acts that are considered to be crimes against the victim. They are:
Assault (both simple assault and aggravated assault)
Criminal Sexual Contact
26. Should I file criminal charges if I have already filed for a restraining order and received this protection?
You should discuss with a domestic violence advocate the issue of whether to file a criminal complaint against your abuser. However, you should make your own decision about filing a criminal charge against the abuser. You have been the victim of a criminal act by someone with whom you have or once had a relationship. A criminal act is not permitted between any two people regardless of their relationship to each other.
Domestic violence is recognized as a serious life-threatening crime. The Prevention of Domestic Violence Act was enacted to protect you. It is your right to use the law.
27. How do I file a criminal complaint?
You usually begin the process at your police department or your local municipal court. From this point, the process is different, depending on the crime and the county where the crime has taken place. In some cases the police will issue a warrant for arrest. In other cases a court summons will be issued.
The case will either proceed through the municipal court system or be handed over to the county prosecutor's office. A case screening may be scheduled. If you receive notice about a case screening, make sure you call the phone number on the notice the day before the scheduled screening to find out what has happened to your charges. Sometimes charges will be reduced, depending upon the evidence in the case. It is important to keep in touch with the prosecutor's office or municipal court, and provide whatever they need to resolve your case.
REMINDER: Criminal complaints and violations of a restraining order complaints must be filed and prosecuted in the county where the offense took place. This is different than the filing for a civil restraining order. Civil restraining orders can be filed in several different places: where you live or are sheltered, where the abuser lives or where the domestic violence took place.
28. Is there anything I need to do if I file a criminal complaint?
All criminal cases require evidence. This is why it is important for you to seek treatment for any physical or emotional injuries you have suffered at the hands of the attacker. For example, if the attacker has given you a black eye, take a photograph of your black eye. It would also help if you tell a medical professional, either your private doctor or someone in a hospital clinic or emergency room, how you received this injury or why you have become so emotionally upset. If you are on welfare, or if your family is working with the Division of Youth and Family Services, tell your social worker what happened. You can also call your local domestic violence hotline if you need help and support. (See Helpful Numbers at the end of this booklet.)
REMINDER: If you are physically injured, ask the doctor or nurse to document your injury, how it happened, and to include photos of your injury in your medical record. These records may be useful to you if you choose to take legal action. Even if you choose not to file criminal charges at that time, it is still important to have a record of what was done to you.
29. If I file criminal charges, what can I expect before the case goes to trial?
After you have filed criminal charges, the abuser will probably be released from custody on bail, or on his or her own word. According to the law, the court that releases the abuser (the defendant) on bail may require him or her to follow certain rules. These rules are listed in a bail order, which, like the civil restraining order, is a legally enforceable document.
The rules on the bail may include prohibiting the defendant from having any contact with you. This includes prohibiting the defendant from entering your home, place of work or school, or harassing you or your relatives. If you and the abuser are living together, the judge releasing the defendant may allow him or her to return home to pick up personal belongings. Ask the judge to limit the time the defendant can stay, and ask that a police escort supervise him or her while there. The court clerk, or your lawyer if you have one, must give you a copy of this bail order. Keep it in a safe place. You may need it if the defendant does not obey the bail order. If the abuser is released on bail, you have the right to be notified of this release. Law enforcement authorities will attempt to notify you of the release.
30. Will I have to testify?
YES. A court hearing will be scheduled as soon as possible on your charges, and you will have to testify. If the defendant is found guilty, the judge will sentence him or her. The sentence will depend on the facts in the case. As part of the sentence, the judge may order the defendant to continue obeying the bail order. This is called a sentencing order. In addition, as part of the sentencing order, the judge may require the defendant to get professional counseling.
31. What happens if a bail order or sentencing order is not obeyed?
If the abuser does not obey the terms of the bail order or the sentencing order, he or she can be arrested and put in jail. Call the police if a violation occurs. Have your copy ready to show the police when they arrive.
32. Will I need a lawyer to handle these procedures?
The New Jersey Prevention of Domestic Violence Act was written so you can do everything yourself, which is called "pro se" in legal terms. There are times when you may want to consult a lawyer, especially if you are considering a divorce because of an abusive and threatening marital relationship. You may contact a lawyer through your county legal services office or county bar association lawyer referral service. Also, your local domestic violence program may know of lawyers with particular expertise in domestic violence.
33. Are there ever any false complaints made under the Domestic Violence Act?
In my experience, the area of domestic violence is one of the most abused laws in the State of New Jersey. In my opinion, in about one half of the cases, the primary reason why the wife filed for the restraining order is because she wants to evict her husband from the home. Remember, even if a couple are divorcing, both parties have equal rights to live at the marital home. In my opinion, about one half of domestic violence complaints that are filed every year are frivolous. There appears to be three major reasons for filing groundless domestic violence complaints. They are as follows;
1. The "victim" wants to exclude the estranged spouse or lover from the home.
2. The "victim" wants to achieve a perceived advantage in the context of a contested child custody action.
3. The "victim" wants to punish the alleged aggressor for things having nothing whatsoever to do with domestic violence.
If an innocent party has been unjustly accused of an act or acts of domestic violence, it is strongly recommended that competent legal counsel be immediately sought. Pro se representation should be avoided if at all possible. In choosing an attorney to defend against a false domestic violence claim, great care must be taken to ensure that the attorney is well-versed and experienced in this area of the law. It is extremely difficult to get rid of a Final Restraining Order "once one has been entered" without the purported victim's consent. Experienced New Jersey Family Lawyers with special knowledge of our domestic violence laws should be contacted the moment it is suspected that a false accusation may emerge.
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