Removing a Final Restraining Order
Monmouth County NJ Vacating a Restraining Order Lawyer
Being served with a temporary restraining order (TRO) is burdensome. However when the TRO becomes a final restraining order (FRO) it can become extremely problematic for most. Being prohibited from speaking to someone, having to avoid certain places and losing your right to bear arms are just a few of the ramifications of a FRO in New Jersey. To make matters worse, unlike most other states, restraining orders in New Jersey are indefinite. In other words, they do not go away. In fact, there are really only two ways in which a someone can remove a restraining order. For more information on those options, please see below.
Need to Speak to Consult with Attorney About Vacating Restraining Order in Freehold NJ
If you would like to speak to one of our Monmouth County domestic violence defense attorneys today about your options, then please contact our Middletown office at 732-858-6959. One of our attorneys will be glad to go over the specific of your case and we will give you our honest feedback on if and how we think we can be of assistance. Our office serves all of Monmouth County, including towns like Tinton Falls, Neptune, Howell, Middletown, Holmdel, Wall Township, Eatontown, Manalapan and Englishtown. As always, our initial consultations are always free of costs. So, if you have any questions whatsoever, please do not hesitate to contact us.
Restraining Orders Never Expire in New Jersey
As touched upon earlier, final restraining orders in New Jersey never expire. Even if the parties decide to rekindle their relationship or decide to act as if the restraining order is no longer exists, the Defendant in the underlying restraining order is still in violation of the order, regardless of what the protected party says. That is why we strongly recommend that as soon as a Defendant is eligible to file a motion to vacate a restraining order, they do. Here is some information on when and how a final restraining order can be vacated in New Jersey.
How to Vacate a Final Restraining Order in NJ
In New Jersey, there is in essence two ways in which a final restraining order can legally be removed. Both ways require that a Judge formally vacate the previous order. In other words, the parties cannot unilaterally decide that the order no longer exists. The first way is by way of consent of the plaintiff and the second way is by filing a formal motion to vacate in the Monmouth County Superior Courthouse, Chancery Division, Family Part. For more information on these options, please see below.
When the Victim of a Restraining Order Wants to Remove it
The first, and the least common way, is where the protected party, also known as the plaintiff, petitions a superior court Judge in the county where the order was originally granted to remove said order. Before doing so, the plaintiff will be forced to speak to a domestic violence counselor to make sure that they are aware of what they are doing. Once that occurs, the plaintiff will then go in front of a Judge and if the Judge concludes that the plaintiff is aware of the ramifications of removing said order and that they are doing so freely and voluntarily, the order will be vacated.
What Does the Judge Look at When Deciding to Vacate Restraining Order in NJ
The second and most common method, is by way of filing a formal motion to vacate the final restraining order. This formal motions is more commonly referred to as a “Carfagno Motion”. Carfagno v. Carfagno is the lead appellate division case when it comes to determining when a motion to vacate should be granted in New Jersey. It in essence lays out the framework for the trial court of what they need to balance during hearing these motions.
A motion vacate a restraining order will be filed in the Superior Court in the county where the order was originally granted. In layman terms, the defendant will be seeking to convince the Judge that there has been a change in circumstances and as such, the restraining order is no longer necessary. This is no easy task and it normally takes a substantial period of time too elapse before a Judge will actually entertain the order. Pursuant to the Court in Carfagno, the key factors that the Judges should look to when deciding if a FRO should be vacated in New Jersey are as follows:
- Whether the victim consented to lift the restraining order;
- Whether the victim fears the defendant;
- The nature of the relationship between the parties today;
- The number of times that the defendant has been convicted of contempt for violating the order;
- Whether the defendant has a continuing involvement with drug or alcohol abuse;
- Whether the defendant has been involved in other violent acts with other persons;
- Whether the defendant has engaged in counseling;
- The age and health of the defendant;
- Whether the victim is acting in good faith when opposing the defendant’s request;
- Whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and
- Any other factors deemed relevant by the court.
Can I Legally Own Weapons Again if an FRO is Vacated in NJ?
As most are probably aware, anyone who has had a final restraining order imposed in New Jersey will be required to forfeit their second amendment rights, which includes surrendering all of the weapons they previously lawfully owned. If a final restraining order is vacated in New Jersey and there are no other prohibitions in place, a defendant will be able to make application for a Firearms Purchasers Identification Card. This application will need to be made to the Chief of Police in the township where they reside. If the Chief of Police grants the defendant’s application, they will legally be allowed to possess weapons again.
Removing Restraining Order Attorney in NJ
At Proetta & Oliver our attorneys are well aware of what a final restraining order can do to someones life. The ramifications and the hurdles they inevitably put into place are severe. That is why we strongly recommend that if a FRO is granted, that as soon as it is feasible, a Defendant petition the court to remove the order. Our office serves all of Monmouth County, including towns like Ocean Township, West Long Branch, Asbury Park, Marlboro, Atlantic Highland, Freehold, Neptune and Brielle. Our office offers free in-depth consultations, so if you would like to speak to one of our attorneys about your options, then please contact us directly at 732-858-6959.