Restraining Orders and Common Sense
What the law says and what actually happens can be two completely different situations. This is especially prevalent in family law.
For example, in an unpublished opinion, New Jersey’s Appellate Division recently upheld a Final Restraining Order (FRO) even though the Judge did not follow the procedure outlined by the law. In A.M.V. v. F.T., a couple residing together got into a verbal altercation. Defendant admitted to drinking prior to the altercation. This verbal altercation escalated to Defendant pushing the Plaintiff. There was a dispute as to whether Defendant pushed Plaintiff into a wall, but Defendant admitted to at least pushing her over the couch.
Both the Plaintiff and Defendant did not have attorneys. The Judge took testimony and found an FRO to be necessary because Defendant was intoxicated and physically assaulted Plaintiff.
Defendant appealed and argued the Judge failed to provide a factual and legal basis for the FRO. In addition, Defendant argued the Judge failed to do a full analysis that is usually required for an FRO ruling.
In order for the Plaintiff to obtain an FRO against a Defendant, the Plaintiff needs to prove by a preponderance of the evidence: (1) a particular relationship exists between Plaintiff and Defendant; (2) a predicate act of domestic violence perpetrated by Defendant; and (3) an FRO is necessary to protect the Plaintiff. See Silver v. Silver, 387 N.J. Super. 112 (2006).
In A.M.V. v. F.T., the Judge simply granted the FRO without a finding of fact or further explanation. In almost every decision, a Judge must make a record of all the facts that support their conclusion. Although the Judge failed to take this vital step here, the Appellate Division nonetheless upheld the FRO by making their own findings based on the record in front of them – something that should never happen.
The Judge also failed to find that the FRO is necessary for the protection of the Plaintiff. In other words, the Judge placed an FRO on the Defendant without doing all three steps, as required by law. Despite this error, the Appellate Division found that because Defendant physically shoved the Plaintiff, the FRO can be deemed as necessary without an analysis.
The Appellate Division substituted the Judge’s legal errors with their own common sense. They saw that an FRO was necessary in this case, so they took steps to ensure that would be the result.
Self-represented litigants/pro se individuals have to be careful in situations such as FRO hearings. Family Judges have tremendous power. Although the law might have requirements that a Judge has to meet, there is always the possibility that they will make a mistake, skip part of it, or ignore it altogether. Attorneys are there to protect the rights of litigants and to ensure that the law is followed. If you or someone you know is either seeking a restraining order, or one has been filed against them, contact an attorney immediately. Restraining Order cases are decided on an expedited basis, so time is of the essence.
