Since 1981, New Jersey courts have been entering final restraining orders (FROs) under the Prevention of Domestic Violence Act. The numbers regarding domestic violence are staggering. According to the Administrative Office of the Courts (AOC) Report on the Prevention of Domestic Violence Act, in 2003 alone, 44,316 new complaints were filed which resulted in the entry of 11,423 FROs.
Although records only dating back to 1993 have been compiled, the domestic violence central registry “lists 120,000 batterers and their victims.” New Jersey Lawyer, September 3, 2001.
In New Jersey, FROs do not have a sunset provision requiring that they be renewed or reissued after the passage of time. In short, they last indefinitely. This is contrary to the law in many states where after the passage of time the victim is required to return to court to justify the continuation of the order. (Connecticut 6 months Conn.Gen State § 46b-15(d); Maryland 1 year MD Code Ann. Fam. Law §4-506; Pennsylvania 18 months 23 PA Cons. State Ann. § 6108; New York 2 to 5 years NY Fam. Ct. Act §842; Delaware 1 year Del. Code An.. Tit. 10 §1045; California 18 months § 527.6(d); District of Columbia 1 year DC Rule 11(f)). In New Jersey, it is incumbent upon defendants to return to court to vacate or modify the FRO.
When considering the subject of dissolving FROs, let us not discount that there may be many orders outstanding of questionable merit. Prior to 1993, restraints were routinely entered without a requirement that the defendant admit to any fault or wrongdoing. (See R. 5:7A(d)). Indeed, many practitioners (not foreseeing the repercussions of conceding to permanent restraints) counseled their clients to stipulate to the entry of FROs in order to avoid an “unnecessary” court appearance. In this regard, it is worth recalling that in-house restraining orders were being granted as late as 1995. See N.J.S.A. 2C:25-28.1.
While attorneys today understand that the issuance of a FRO is a serious matter, many FROs are entered against unwary pro se litigants with no requirement that they receive legal representation. These defendants may not appreciate that the entry of such an order can result in the loss of employment or the loss of employment opportunities; or that violation of a FRO is a crime. To the unsophisticated, the entry of a FRO is little more than a harmless restraint. See Chernesky v. Fedorczyk, 346 N.J. Super. 34 (App. Div. 2001) (FRO not disputed by defendant is reversed as complaint did not state an act of domestic violence). Due to a burdensome calendar and the paramount consideration of protecting victims, trial courts may unknowingly grant specious FROs when pro se litigants do not object to their entry. Id. (requiring trial courts to ensure that there is a factual predicate before entering the FRO).
Compounding the problem is the general impression of practitioners and defendants that, once issued, a FRO can never be vacated without the victim’s consent. This impression is not consistent with the law. Although FROs have no fixed expiration date, “the duration of an injunctive order should be no longer than is reasonably required to protect the interest of the injured party.” Trans American Trucking v. Ruane, 273 N.J. Super. 130, 133 (App. Div. 1994). Therefore, it is not that a FRO should continue as long as a victim wants it — a FRO should continue only as long as the victim requires it.
Presently, little attention is being paid to the law governing the dissolution of FROs. Although many FROs are vacated each year, almost all of these cases are the result of victims consenting to the dissolution of restraints after being informed of the cycle of violence. This article will examine the law regarding the dissolution of domestic violence orders without the consent of the victim and will provide practice tips for successfully making these applications.
II. Obtaining the Complete Record
“Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part, Chancery Division of the Superior Court but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.” N.J.S.A. 2C:25-29(d). Due to judicial rotation and retirement, it will be rare when dissolution actions come before the judge who originally entered the FRO. Even when the judge issuing the FRO is available, it is unlikely that the judge will be able to recall the facts of the case. Therefore, in making application to dissolve the FRO, counsel must be prepared to obtain the “complete record” of the hearing. The “complete record” has been defined to include the transcript of the final hearing as well as a copy of the original complaint and final order. Failure to obtain the transcript will be fatal to the application as the reviewing court will be unable to determine whether the circumstances existing at the time of the FRO have substantially changed. Kanaszka v. Kuen, 313 N.J. Super. 600, 606-607 (App. Div. 1998).
PRACTICE TIP #1: Practitioners should make it a policy to order a transcript of the final hearing (or at least advise clients of the need to order a transcript) at the time of the entry of the FRO.
Dissolution applications are likely to be filed many years after the entry of the FRO. For a host of reasons, transcripts can become unavailable over time. Therefore, obtaining the transcript of the hearing (or at least the audio tape) at the time that the FRO is issued can be essential.
III. The Burden to Show Good Cause
After the complete record is assembled the next step is to demonstrate “good cause” to dissolve the FRO. However, before demonstrating good cause an issue arises as to the burden of proof that defendant’s must satisfy. To date, the statute and the case law have not defined that burden. Although the domestic violence law is part of the criminal code, N.J.S.A. 2C:25-29 provides that the standard for proving the allegations of a domestic violence complaint shall be by “a preponderance of the evidence.” Therefore, practitioners should argue that the defendant’s burden to show good cause to dissolve a FRO should also be by a preponderance of the evidence.
Defendants are not automatically entitled to a plenary hearing regarding these applications. Kanaszka at 608. Rather, the moving party has the burden to make a prima facie showing that good cause exists for dissolution of the FRO. If that burden is met, the court should then determine whether there are facts in dispute material to a resolution of the motion prior to ordering a plenary hearing. Therefore, practitioners must be certain to present a full and complete application to ensure that the matter gets to the hearing stage where discovery may be obtained and the plaintiff can be cross examined. See also Depos v. Depos, 307 N.J. Super. 396 (Ch. Div. 1997) (discovery only allowed in domestic violence cases upon showing good cause).
IV. Defining Good Cause
The Legislature did not define good cause and effectively left it for the courts to interpret this standard. In interpreting the good cause standard, the courts have looked to the Legislature’s findings and declarations that are embodied in the Act. Specifically, the Legislature provided that “it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long term civil and criminal remedies and sanctions.” N.J.S.A. 2C:25-18. Furthermore, it is the “intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.” Id. Finally, trial courts are authorized to “grant any relief necessary to prevent further abuse.” N.J.S.A. 2C:25-29(b).
It took almost 14 years for the first published case to define the good cause standard. In 1995, Judge Dilts wrote what has become the most important opinion on the subject of good cause. Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995). In Carfagno, the trial court defined eleven (11) factors to be considered in determining good cause. Id. at 434-435. The Appellate Division has now cited these factors with approval. Sweeney v. Honachefsky, 313 N.J. Super. 443 (App. Div. 1998). Practitioners must understand that these factors are to be weighed qualitatively not quantitatively. Nevertheless, the factors represent a road map for establishing good cause.
V. Factor 1 Consent of the Victim to Lift the Order:
As already noted, the most common way for a FRO to be dissolved is upon the consent of the victim. Where victims do not consent to dissolving the FRO, practitioners should examine the history between the parties since the entry of restraints. If after entry of restraints the parties have reconciled voluntarily or shared marital relations, the FRO may be vacated as being unenforceable and stale. Mohamed v. Mohamed, 232 N.J. Super. 474 (App. Div. 1989); but see A.B. v. L.M., 289 N.J. Super. 125 (App. Div. 1996); Torres v. Lancellotti, 257 N.J. Super. 126 (Ch. Div. 1992).
PRACTICE TIP #2: Do not allow the victim’s failure to consent to lift the restraints to deter a bona fide application for dissolution.
Even where there have been no actions by the victim to undermine the viability of a FRO, the failure of the victim to consent to the dissolution of restraints is not in itself fatal to a dissolution application. The Legislature did not provide that FROs only may be dissolved upon permission of the victim. Carfagno at 437. For the practitioner, the failure of the victim to consent to dissolution of the FRO is the start– not the end– of the inquiry.
Some judges may not entertain a hearing on the issue of dissolution if the victim does not consent (or at least does not object). This practice is inconsistent with the law and it represents a deviation from the good cause standard.
VI. Factor 2 The Victim’s Fear of the Defendant:
An important justification for entering a FRO is the fear, dominion and control that a defendant has over the victim. Therefore, before dissolving a FRO it is critical that courts consider whether the victim still fears the defendant. Obviously, victims who do not consent to the dissolution of a restraining order will claim that they fear the defendant. However, this is not the test. The appropriate issue for the court to determine is whether “a reasonable victim similarly situated would have fear of the defendant under these circumstances.” Carfagno at 437; But see State v. Hoffman, 149 N.J. 564, 585-86 (1997) (indicating a subjective test for proving harassment in a domestic violence proceeding and providing that “the fears of a domestic violence victim… should not be trivialized”).
PRACTICE TIP #3: Objective fear, not subjective fear of the victim, is to be considered in an application to dissolve a FRO.
In determining whether the victim objectively fears the defendant, attorneys will need to go back to the underlying act of domestic violence and the facts of the case. As set forth previously, prior to 1993, FROs were issued without a finding or admission of fault. In these cases, practitioners will need to determine what act of domestic violence the defendant may have committed. The more obscure the underlying act of domestic violence, the more likely that a reasonable victim similarly situated may no longer be in fear of the defendant. For example, we all have seen restraining orders entered for a host of minor transgressions that can occur during the intensity of contested litigation. See Sweeney at 446. (Defendant placed a note and a rose in plaintiff’s purse and pursued her after she announced her intention to break up with him). These transgressions viewed years later away from the heated battle of litigation, may indeed cast doubt on whether the victim has objective fear of the defendant.
VII. Factor 3 Nature of the Relationship Between the Parties Today:
The trial court must determine whether the current relationship between the parties places the victim in a position where the defendant can still exercise control and dominion if the FRO is dissolved. For example, if the parties have an unemancipated child in common, there will likely be frequent contact between the parties giving the defendant opportunity to exercise control if the restraints are lifted. Conversely, the parties may have no relationship in the aftermath of the FRO. For example, take the case where the parties had a dating relationship when the FRO was entered and now are married to different partners. Another example would be the case where the parties are now separated by great physical distance. Where the relationship between the parties is attenuated, and the ability to exert control and dominion is limited or non-existent, dissolution of the FRO may be warranted.
PRACTICE TIP #4: Always give the court a reason for the defendant bringing the application to dissolve the FRO.
I have heard some judges ask rhetorically, “if the defendant doesn’t intend to have contact with the victim, why does the defendant want the restraints lifted.” Even when the question is not expressed, it clearly must be in the mind of many judges reviewing a dissolution application. For this reason it makes for a stronger application to be able to inform the court that the application is necessary for some reason outside of the defendant wanting to have contact with the victim. (e.g. a defendant seeking employment in law enforcement). Conversely, ignoring the eleven (11) factors for demonstrating good cause and merely relying on the defendant’s reasons for bringing the application would be an exercise in futility. M.V. v. J.R.G., 312 N.J. Super. 597, 602 (Ch. Div. 1997) (“there is nothing in the statute to suggest that victims are entitled to less protection than others by virtue of the employment or personal situation of the defendant.”).
VIII. Factor 4 Contempt Convictions:
Practitioners must determine whether their client has ever violated the FRO. The court needs to know that the FRO has been effective in breaking the cycle of power and control exercised by the defendant over the victim. Defendants committing an act of contempt demonstrate that the FRO needs to continue as the cycle of power and control has not been broken.
PRACTICE TIP #5: While it is best to be able to show that there have been no contempt convictions against the defendant, do not allow a contempt conviction to deter an otherwise bona fide application to dissolve a FRO.
In some cases, the contempt is not an act of defiance as much as an act of ignorance. Many acts of contempt occur as a result of actions taken by the defendant after entry of a temporary restraining order (TRO) but before the final hearing. Indeed, it is not uncommon that the complaint for a FRO will be denied at the final hearing, while the defendant is convicted of contempt of the TRO. State v. Sanders, 327 N.J. Super. 385 (App. Div. 2000). Especially, during the period after issuance of an ex parte TRO, defendants (many of whom are having their first experience with the legal system) do not appreciate the gravity of their actions. Many are without legal counsel and are confused about their rights and obligations. Most are going through the emotional turbulence of having been evicted from their home and separated from their children. Therefore, the fact that the defendant has committed an act of contempt should not end the inquiry for the practitioner.
IX. Factor 5 Alcohol and Drug Involvement:
Statistics show that 39% of all domestic violence incidents involve alcohol or drugs. Therefore, alcohol or drug use by the defendant is relevant in protecting the victim and to ensure that the dissolution of restraints does not put the victim at risk. Practitioners will need to go back to the underlying proceedings to determine whether alcohol or drugs were involved.
PRACTICE TIP #6: If alcohol or drugs were involved in the commission of domestic violence, ensure that the defendant has received alcohol or drug counseling prior to making the application for dissolution.
Practitioners must be able to assure the court that although alcohol or drugs were an issue before, they are not now. Demonstrating that an alcohol or drug problem that motivated the act of domestic violence now no longer exists, serves to support an application for dissolution. The defendant who has received treatment and is now clean is a clear example of substantially changed circumstances.
X. Factor 6 Other Violent Acts
Past behavior is considered the single most reliable indicator of future behavior in the absence of clear and convincing change. Therefore, the trial court must consider whether the defendant has engaged in other violent acts against the victim or other persons. In this regard, the practitioner will need to go back to the complaint and the underlying hearing to determine whether prior incidents of domestic violence were cited. In the complaint there is a box for victims to check as to whether there have been any prior acts of domestic violence. If the box was not checked, bring that to the attention of the court.
Obviously, the practitioner must also explore whether the defendant has engaged in violent acts since the filing of the complaint. Assuming there have been no acts of contempt or incidents of violence against the victim, attorneys must also explore the other relationships of the defendant since the FRO. Practitioners should be certain to be aware of complaints, police reports, or other claims of violent acts that can be alleged against the defendant. If these incidents do exist, the attorney must obtain full knowledge of what happened and be prepared to explain why it would have no bearing on the dissolution application.
XI. Factor 7 Whether the Defendant has Engaged in Domestic Violence Counseling:
A 1999 amendment to the statute now makes clear that “in any case where the court order contains a requirement that the defendant receive professional counseling, no application by the defendant to dissolve the restraining order shall be granted unless…the defendant has completed all required attendance at such counseling.” N.J.S.A. 2C:25-27. However, even where domestic violence counseling is not a requirement of the FRO, the failure to obtain counseling will likely be a fatal flaw to a dissolution application without the victim’s consent. Many believe that counseling should be mandatory for any person found to have committed an act of domestic violence. Assembly Task Force on Domestic Violence, Findings and Recommendations, (Recommendation #25– July 1998). Therefore, counseling is necessary to demonstrate to the court that it is dealing with a changed person, a person who takes seriously the charges and a person who has obtained treatment for the problem that brought about the improper conduct to begin with.
PRACTICE TIP #7: Never make a dissolution application without the defendant obtaining domestic violence counseling.
The defendant who seeks to dissolve the restraints because the FRO was a “bum rap” will not prevail. The dissolution application is not an opportunity to have a rehearing on the FRO. It is not an appeals process. Rather it is a process of demonstrating “what has changed.” As stated by the Appellate Division, “the linchpin in any motion addressed to dismissal of a FRO should be whether there have been substantial changed circumstances since its entry that constitute good cause for consideration of dismissal.” Kanaszka at 609.
XII. Factor 8 Age/health of the Defendant
An argument for dissolution can be made if the defendant is infirm or of an age that makes the defendant no longer a threat to the victim. Age can also be a positive factor in a dissolution application from the standpoint of maturity. Many FROs are issued against defendants who are quite young. Clearly, the conduct of an 18 year old person may be substantially discounted if that same person seeks dissolution many years later, and is able to establish no subsequent involvement in any type of domestic violence.
XIII. Factor 9 Good Faith of Victim:
As set forth previously, FROs are designed to protect the victim– not to punish the defendant. M.V. at 602. If the victim no longer requires protection from the defendant, the victim is not acting in good faith by refusing to consent to dissolving the FRO. Practitioners must not discount the possibility that the victim may have an ulterior motive for maintaining the FRO. Is the victim seeking to deprive the defendant from pursuing a job opportunity? Is the victim seeking to use the perpetuation of the FRO to interfere with the defendant’s rights to children? No less than the New Jersey Supreme Court has recognized that “in the area of domestic violence…some people may attempt to use the process as a sword rather than a shield.” State v. Hoffman at 586. If it can be demonstrated that the victim is not acting in good faith, this will provide strong support for a dissolution application.
XIV. Factor 10 Orders Entered by Other Jurisdictions:
The Violence Against Women Act of 1994, directs that all states give full faith and credit to sister-state protection order. 18 U.S.C. §2265 (2000). Therefore, practitioners need to be certain that there are not FROs entered against the defendant in other jurisdictions. If there have been, determine whether they are still in effect. Be mindful that many jurisdictions do not have FROs that continue indefinitely. These jurisdictions require victims to return to court after the passage of time to justify the continuation of the FROs. Where a victim is unable to sustain the burden of continuing a FRO in another jurisdiction which arise from the same incident, a case can be made that there is no need for the continuation of the FRO in New Jersey.
XV. Factor 11 Other Factors Deemed Relevant by the Court:
This is a catch all factor which is designed to address the unique facts of every case. One other factor identified by the case law is the passage of time. In M.V. v. J.R.G., the defendant made application to dissolve the FRO only eight (8) months after it had been issued. In denying the defendant’s application, the trial court held that the FRO needs to be in effect a “reasonable time” before it could determine whether the factors to establish good cause have been met. M.V. at 602. See also Kanaszka at 609 (rejecting an across the board one-year waiting period to dissolve FROs).
Requiring victims to relitigate issues with the defendant recently after a FRO has been issued can be viewed as another form of abusive controlling behavior. Kanaszka at 608. Conversely, the passage of time works to the defendant’s advantage in making a dissolution application. It provides defendants with an opportunity to establish a new track record; to obtain meaningful counseling or treatment; and to present a set of changed circumstances for the trial court.
Applications to dissolve FROs without the consent of victims are likely to become more commonplace in the near future. Judges must be prepared to give these applications serious consideration and to go beyond a superficial analysis of whether the victim consents to the dissolution of restraints. Practitioners must be prepared to fully explore the eleven (11) factors constituting good cause in order to adequately represent defendants seeking relief from FROs.