Procedural Grounds for Consenting to a Final Restraining Order
After a victim has filed for and been granted a Temporary Restraining Order, the options to move forward have historically been one of the following:
- Dismiss the Temporary Restraining Order;
- Dismiss the Temporary Restraining Order and Enter into Civil Mutual Restraints; or
- Trial in the hopes of prevailing to get a Final Restraining Order
The recent published Appellate Division opinion, J.S. v. D.S., touches upon the procedural grounds for the parties to enter into a Final Restraining Order by consent without the need for an entire trial.
In this case, at the trial court level, the parties consented to a Final Restraining Order on the record, after having been sworn in by the Court with a brief voir dire by the Judge. The Judge engaged in a brief voir dire as to both parties to determine they were entering into this consent knowingly and voluntarily. The trial Court then granted the Final Restraining Order by consent.
Subsequently, the Defendant appealed the Final Restraining Order claiming it was void upon entry, due to the trial court’s failure to take testimony from the Plaintiff that an act of domestic violence actually occurred and to take testimony from the Defendant that he conceded that an act of domestic violence occurred.
While acknowledging that it is common for parties in a domestic violence matter to resolve the issue rather than go to trial, the Appellate Division in J.S. v. D.S. nonetheless vacated the Final Restraining Order and reinstated the Temporary Restraining Order due to the fact that the trial court failed to make a factual finding as to the act of domestic violence set forth in the victim’s Temporary Restraining Order.
What we can take away from J.S. v. D.S. is that, if the parties to a domestic violence matter seek to enter into a Final Restraining Order by consent, the following procedures must occur:
- The Victim must set forth on the record the acts of domestic violence that occurred;
- The Defendant must concede on the records that he or she committed the acts of domestic violence testified to by the Victim; and
- The Victim must make clear on the record the reasons why he or she needs a Final Restraining Order to protect him or her from future acts of domestic violence by the Defendant
As you can see, the proper handling of a domestic violence matter has very serious consequences. For more information regarding domestic violence matters, contact Lyons & Associates. At the law office of Lyons & Associates, our attorneys represent men and women throughout New Jersey who have unresolved family law matters. We place a premium on personalized service and attention. For a private consultation, contact us by e-mail, view our website at www.lyonspc.com, or call our office at 908-575-9777.
Written by: Marissa DelMauro, Esq.