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Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
RESTRAINING ORDERS in DOMESTIC VIOLENCE CASES
by Kenneth A. Vercammen, Esq.
New Jersey domestic violence laws are very strict. If there
are any signs of physical injuries the police must arrest the abuser.
Even without independent witnesses and no physical injuries, police
may arrest the abuser. Domestic Violence is a crime under the law,
and the police must respond to the calls of victims. The police are required
to give the victim information about their rights and to help them. Among
other things, police must write up a report. For example, O.J. Simpson
would not have gotten away with abuse in New Jersey. Police are automatically
required to arrest an abuser if they see any evidence of abuse or assault.
Even during the evening, your town Municipal Court or Superior Court can
issue a civil restraining order which is a legally enforceable document.
The temporary restraining order will prohibit the defendant/abuser from
harassing you or entering your residence. Unlike a criminal
case where a person is provided with lengthy due process, and if guilty
receives probation and a monetary fine, a domestic violence hearing
allows judges to issue far reaching orders. A domestic violence
hearing is usually held within only ten (10) days of the filing of an
ex parte complaint and temporary restraining order. After a hearing
, NJSA 2C:25-29 (b) allows the Chancery Division, Family Part Judge to
grant substantial relief to the complainant. Among the relief the
Court may gives is:
(1) An order restraining the defendant from subjecting the
victim to domestic violence, as defined in this act.
(2) An order granting exclusive possession to the plaintiff
of the residence or household regardless of whether the residence or household
is jointly or solely owned by the parties or jointly or solely leased
by the parties...
(3) An order providing for visitation...[ meaning the complainant
obtains custody]
(4) An order requiring the defendant to pay to the victim
monetary compensation for losses suffered as a direct result of the act
of domestic violence...
(6) An order restraining the defendant from entering the
residence, property, school, or place of employment of the victim or of
other family or household members of the victim...
(7) An order restraining the defendant from making any communication
likely to cause annoyance or alarm...
(8) An order requiring that the defendant make or continue
to make rent or mortgage payments on the residence occupied by the victim
if the defendant is found to have a duty to support the victim or other
dependent household members...
(9) An order granting either party temporary possession
of specified personal property, such as an automobile, checkbook, documentation
of health insurance, any identification documents, a key, and other personal
effects.
(10) An order awarding emergent monetary relief to the victim
and other dependents, if any. An ongoing obligation of support shall
be determined at a later date pursuant to applicable law...²
(11) An Order awarding temporary custody of a minor child.
The court shall presume that the best interests of the child shall be
served by an award of custody to the non- abusive parent.
(12) An Order requiring that a law enforcement officer accompany
either party to the residence to supervise the removal of personal belongings.
(13) An Order granting any other appropriate relief for
the plaintiff and minor children
(14) An Order that the defendant report to the intake office
of the Family Part for monitoring
(15) An Order prohibiting the defendant from possessing
any firearm or weapon
Caselaw protects victims. In Pepe v Pepe, 258 N.J. Super.
157 (Chan. Div. 1992) held that the confidentiality provision of record
keeping under the Domestic Violence act applies to the records kept on
file with the Clerk of the Superior Court.The court held that in determining
whether or not a statutory imposed confidential record should be made
public, the court must consider whether the release of the documents will
be harmful to the victim, whether adverse publicity will be a factor and
whether access to court records will discourage the victim from coming
forward.Despite the substantial financial burden and life restrictions
(often referred to as penalties), the burden of proof in a DOMESTIC VIOLENCE
hearing is only ³by a preponderance of evidence.² Hopefully, parties
will put best interests of children ahead of short term animosity.
Financial limitations often limit the family ability to become involved
in lengthy divorce and custody battles.
A DOMESTIC VIOLENCE complaint can be withdrawn. For
additional information, speak with an attorney experienced in handling
Domestic Violence matters. The following is the NJ Court Rule on Restraining
Orders; Court Rule 5:7A. DOMESTIC VIOLENCE: RESTRAINING ORDERS (a) Application
for Temporary Restraining Order except as provided in paragraph (b) herein,
an applicant for a temporary restraining order shall appear before a judge
personally to testify upon the record or by sworn complaint submitted
pursuant to N.J.S.A. 2C:25-28. If it appears that the applicant is in
danger of domestic violence, the judge shall, upon consideration of the
applicant's domestic violence affidavit, complaint or testimony, order
emergency relief including ex parte relief, in the nature of a temporary
restraining order as authorized by N.J.S.A. 2C:25-17 et seq. (b) Issuance
of Temporary Restraining Order by Electronic Communication. A judge may
issue a temporary restraining order upon sworn oral testimony of an applicant
who is not physically present. Such sworn oral testimony may be communicated
to the judge by telephone, radio or other means of electronic communication.
The judge or law enforcement officer assisting the applicant shall contemporaneously
record such sworn oral testimony by means of a tape-recording device or
stenographic machine if such are available; otherwise, adequate long hand
notes summarizing what is said shall be made by the judge. Subsequent
to taking the oath, the applicant must identify himself or herself, specify
the purpose of the request and disclose the basis of the application.
This sworn testimony shall be deemed to be an affidavit for the purposes
of issuance of a temporary restraining order. A temporary restraining
order may issue if the judge is satisfied that exigent circumstances exist
sufficient to excuse the failure of the applicant to appear personally
and that sufficient grounds for granting the application have been shown.
Upon issuance of the temporary restraining order, the judge shall memorialize
the specific terms of the order and shall direct the law enforcement officer
assisting the applicant to enter the judge's authorization verbatim on
a form, or other appropriate paper, designated the duplicate original
temporary restraining order. This order shall be deemed a temporary restraining
order for the purpose of N.J.S.A. 2C:25-28. The judge shall direct the
law enforcement officer assisting applicant to print the judge's name
on the temporary restraining order. The judge shall also contemporaneously
record factual determinations. Contemporaneously the judge shall issue
a written confirmatory order and shall enter thereon the exact time of
issuance of the duplicate order. In all other respects, the method of
issuance and contents of the order shall be that required by sub-section
(a) of this rule. (c) Temporary Restraining Order. In court proceedings
instituted under the Prevention of Domestic Violence Act of 1990, the
judge shall issue a temporary restraining order when the applicant appears
to be in danger of domestic violence. The order may be issued ex parte
when necessary to protect the life, health, or well-being of a victim
on whose behalf the relief is sought. (d) Final Restraining Order. A final
order restraining a defendant shall be issued only on a specific finding
of domestic violence or on a stipulation by a defendant to the commission
of an act or acts of domestic violence as defined by the statute. (e)
Procedure Upon Arrest Without a Warrant. Whenever a law enforcement officer
has effected an arrest without a warrant on a criminal complaint brought
for a violation otherwise defined as an offense under the Prevention of
Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., bail may be set and
a complaint-warrant may be issued pursuant to the procedures prescribed
in R 3:4-1(b). (f) Venue in Domestic Violence Proceedings. Venue in domestic
violence actions shall be laid in the county where either of the parties
resides, in the county where the domestic violence offense took place,
or in the county where the victim of domestic violence is sheltered. If
the action is not brought in a county of residence, venue shall be transferred
to a county of residence for the final hearing unless the court orders
the matter retained in the county where the complaint is filed for good
cause shown. The following is the NJ Statute on Restraining Orders and
Domestic Violence Matters 2C:25-17. Short title 1. This act shall be known
and may be cited as the "Prevention of Domestic Violence Act of 1991."
2C:25-18. Findings, declarations 2. The Legislature finds and declares
that domestic violence is a serious crime against society; that there
are thousands of persons in this State who are regularly beaten, tortured
and in some cases even killed by their spouses or cohabitants; that a
significant number of women who are assaulted are pregnant; that victims
of domestic violence come from all social and economic backgrounds and
ethnic groups; that there is a positive correlation between spousal abuse
and child abuse; and that children, even when they are not themselves
physically assaulted, suffer deep and lasting emotional effects from exposure
to domestic violence. It is therefore, the intent of the Legislature to
assure the victims of domestic violence the maximum protection from abuse
the law can provide. The Legislature further finds and declares that the
health and welfare of some of its most vulnerable citizens, the elderly
and disabled, are at risk because of incidents of reported and unreported
domestic violence, abuse and neglect which are known to include acts which
victimize the elderly and disabled emotionally, psychologically, physically
and financially; because of age, disabilities or infirmities, this group
of citizens frequently must rely on the aid and support of others; while
the institutionalized elderly are protected under P.L. 1977, c.239 (C.
52:27G-1 et seq.), elderly and disabled adults in non institutionalized
or community settings may find themselves victimized by family members
or others upon whom they feel compelled to depend. The Legislature further
finds and declares that violence against the elderly and disabled, including
criminal neglect of the elderly and disabled under section 1 of P.L. 1989,
c.23 (C. 2C:24-8), must be recognized and addressed on an equal basis
as violence against spouses and children in order to fulfill our responsibility
as a society to protect those who are less able to protect themselves.
The Legislature further finds and declares that even though many of the
existing criminal statutes are applicable to acts of domestic violence,
previous societal attitudes concerning domestic violence have affected
the response of our law enforcement and judicial systems, resulting in
these acts receiving different treatment from similar crimes when they
occur in a domestic context. The Legislature finds that battered adults
presently experience substantial difficulty in gaining access to protection
from the judicial system, particularly due to that system's inability
to generate a prompt response in an emergency situation. It is the intent
of the Legislature to stress that the primary duty of a law enforcement
officer when responding to a domestic violence call is to enforce the
laws allegedly violated and to protect the victim. Further, 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, and by ordering
those remedies and sanctions that are available to assure the safety of
the victims and the public. To that end, the Legislature encourages the
training of all police and judicial personnel in the procedures and enforcement
of this act, and about the social and psychological context in which domestic
violence occurs; and it further encourages the broad application of the
remedies available under this act in the civil and criminal courts of
this State. It is further intended that the official response to domestic
violence shall communicate the attitude that violent behavior will not
be excused or tolerated, and shall make clear the fact that the existing
criminal laws and civil remedies created under this act will be enforced
without regard to the fact that the violence grows out of a domestic situation.
2C:25-21.1 Rules, regulations concerning weapons prohibitions and domestic
violence. The Attorney General may adopt, pursuant to the "Administrative
Procedure Act," P.L. 1968, c.410 (C. 52:14B-1 et seq.), rules and
regulations necessary and appropriate to implement this act.
2C:25-22. Immunity from civil liability A law enforcement
officer or a member of a domestic crisis team or any person who, in good
faith, reports a possible incident of domestic violence to the police
shall not be held liable in any civil action brought by any party for
an arrest based on probable cause, enforcement in good faith of a court
order, or any other act or omission in good faith under this act.
2C:25-23. Dissemination of notice to victim of domestic
violence 7. A law enforcement officer shall disseminate and explain to
the victim the following notice, which shall be written in both English
and Spanish: "You have the right to go to court to get an order called
a temporary restraining order, also called a TRO, which may protect you
from more abuse by your attacker. The officer who handed you this card
can tell you how to get a TRO. The kinds of things a judge can order in
a TRO may include: (1) That your attacker is temporarily forbidden from
entering the home you live in;
(2) That your attacker is temporarily forbidden from having
contact with you or your relatives;
(3) That your attacker is temporarily forbidden from bothering
you at work;
(4) That your attacker has to pay temporary child support
or support for you;
(5) That you be given temporary custody of your children;
(6) That your attacker pay you back any money you have to
spend for medical treatment or repairs because of the violence. There
are other things the court can order, and the court clerk will explain
the procedure to you and will help you fill out the papers for a TRO.
You also have the right to file a criminal complaint against
your attacker. The police officer who gave you this paper will tell you
how to file a criminal complaint. On weekends, holidays and other times
when the courts are closed, you still have a right to get a TRO. The police
officer who gave you this paper can help you get in touch with a judge
who can give you a TRO." 2C:25-24 Domestic violence offense reports.
8.
a. It shall be the duty of a law enforcement officer who
responds to a domestic violence call to complete a domestic violence offense
report. All information contained in the domestic violence offense report
shall be forwarded to the appropriate county bureau of identification
and to the State bureau of records and identification in the Division
of State Police in the Department of Law and Public Safety. A copy of
the domestic violence offense report shall be forwarded to the municipal
court where the offense was committed unless the case has been transferred
to the Superior Court. b. The domestic violence offense report shall be
on a form prescribed by the supervisor of the State bureau of records
and identification which shall include, but not be limited to, the following
information:
(1)The relationship of the parties;
(2)The sex of the parties;
(3)The time and date of the incident;
(4)The number of domestic violence calls investigated;
(5)Whether children were involved, or whether the alleged
act of domestic violence had been committed in the presence of children;
(6)The type and extent of abuse;
(7)The number and type of weapons involved;
(8)The action taken by the law enforcement officer;
(9)The existence of any prior court orders issued pursuant
to this act concerning the parties;
(10) The number of domestic violence calls alleging a violation
of a domestic violence restraining order;
(11) The number of arrests for a violation of a domestic
violence order; and
(12) Any other data that may be necessary for a complete
analysis of all circumstances leading to the alleged incident of domestic
violence. c. It shall be the duty of the Superintendent of the State Police
with the assistance of the Division of Systems and Communications in the
Department of Law and Public Safety to compile and report annually to
the Governor, the Legislature and the Advisory Council on Domestic Violence
on the tabulated data from the domestic violence offense reports, classified
by county 2C:25-25. Criminal complaints; proceedings 9. The court in a
criminal complaint arising from a domestic violence incident: a. Shall
not dismiss any charge or delay disposition of a case because of concurrent
dissolution of a marriage, other civil proceedings, or because the victim
has left the residence to avoid further incidents of domestic violence;
b. Shall not require proof that either party is seeking a dissolution
of a marriage prior to institution of criminal proceedings; c. Shall waive
any requirement that the victim's location be disclosed to any person.
2C:25-26 Release of defendant before trial; conditions.
10. a. When a defendant charged with a crime or offense involving domestic
violence is released from custody before trial on bail or personal recognizance,
the court authorizing the release may as a condition of release issue
an order prohibiting the defendant from having any contact with the victim
including, but not limited to, restraining the defendant from entering
the victim's residence, place of employment or business, or school, and
from harassing or stalking the victim or victim's relatives in any way.
The court may enter an order prohibiting the defendant from possessing
any firearm or other weapon enumerated in subsection r. of N.J.S. 2C:39-1
and ordering the search for and seizure of any such weapon at any location
where the judge has reasonable cause to believe the weapon is located.
The judge shall state with specificity the reasons for and scope of the
search and seizure authorized by the order. b. The written court order
releasing the defendant shall contain the court's directives specifically
restricting the defendant's ability to have contact with the victim or
the victim's friends, co-workers or relatives. The clerk of the court
or other person designated by the court shall provide a copy of this order
to the victim forthwith. c. The victim's location shall remain confidential
and shall not appear on any documents or records to which the defendant
has access. d. Before bail is set, the defendant's prior record shall
be considered by the court. The court shall also conduct a search of the
domestic violence central registry. Bail shall be set as soon as it is
feasible, but in all cases within 24 hours of arrest. e. Once bail is
set it shall not be reduced without prior notice to the county prosecutor
and the victim. Bail shall not be reduced by a judge other than the judge
who originally ordered bail, unless the reasons for the amount of the
original bail are available to the judge who reduces the bail and are
set forth in the record. f. A victim shall not be prohibited from applying
for, and a court shall not be prohibited from issuing, temporary restraints
pursuant to this act because the victim has charged any person with commission
of a criminal act.
2C:25-26.1. Notification of victim of release of defendant
1. Notwithstanding any other provision of law to the contrary, whenever
a defendant charged with a crime or an offense involving domestic violence
is released from custody the prosecuting agency shall notify the victim.
2C:25-27 Conditions of sentencing of defendant found guilty
of domestic violence. 11. When a defendant is found guilty of a crime
or offense involving domestic violence and a condition of sentence restricts
the defendant's ability to have contact with the victim, that condition
shall be recorded in an order of the court and a written copy of that
order shall be provided to the victim by the clerk of the court or other
person designated by the court. In addition to restricting a defendant's
ability to have contact with the victim, the court may require the defendant
to receive professional counseling from either a private source or a source
appointed by the court, and if the court so orders, the court shall require
the defendant to provide documentation of attendance at the professional
counseling. 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, in addition
to any other provisions required by law or conditions ordered by the court,
the defendant has completed all required attendance at such counseling.
2C:25-28 Filing complaint alleging domestic violence in
Family Part; proceedings. 12. a. A victim may file a complaint alleging
the commission of an act of domestic violence with the Family Part of
the Chancery Division of the Superior Court in conformity with the Rules
of Court. The court shall not dismiss any complaint or delay disposition
of a case because the victim has left the residence to avoid further incidents
of domestic violence. Filing a complaint pursuant to this section shall
not prevent the filing of a criminal complaint for the same act. On weekends,
holidays and other times when the court is closed, a victim may file a
complaint before a judge of the Family Part of the Chancery Division of
the Superior Court or a municipal court judge who shall be assigned to
accept complaints and issue emergency, ex parte relief in the form of
temporary restraining orders pursuant to this act. A plaintiff may apply
for relief under this section in a court having jurisdiction over the
place where the alleged act of domestic violence occurred, where the defendant
resides, or where the plaintiff resides or is sheltered, and the court
shall follow the same procedures applicable to other emergency applications.
Criminal complaints filed pursuant to this act shall be investigated and
prosecuted in the jurisdiction where the offense is alleged to have occurred.
Contempt complaints filed pursuant to N.J.S. 2C:29-9 shall be prosecuted
in the county where the contempt is alleged to have been committed and
a copy of the contempt complaint shall be forwarded to the court that
issued the order alleged to have been violated. b. The court shall waive
any requirement that the petitioner's place of residence appear on the
complaint. c. The clerk of the court, or other person designated by the
court, shall assist the parties in completing any forms necessary for
the filing of a summons, complaint, answer or other pleading. d. Summons
and complaint forms shall be readily available at the clerk's office,
at the municipal courts and at municipal and State police stations. e.
As soon as the domestic violence complaint is filed, both the victim and
the abuser shall be advised of any programs or services available for
advice and counseling. f. A plaintiff may seek emergency, ex parte relief
in the nature of a temporary restraining order. A municipal court judge
or a judge of the Family Part of the Chancery Division of the Superior
Court may enter an ex parte order when necessary to protect the life,
health or well-being of a victim on whose behalf the relief is sought.
g. If it appears that the plaintiff is in danger of domestic violence,
the judge shall, upon consideration of the plaintiff's domestic violence
complaint, order emergency ex parte relief, in the nature of a temporary
restraining order. A decision shall be made by the judge regarding the
emergency relief forthwith. h. A judge may issue a temporary restraining
order upon sworn testimony or complaint of an applicant who is not physically
present, pursuant to court rules, or by a person who represents a person
who is physically or mentally incapable of filing personally. A temporary
restraining order may be issued if the judge is satisfied that exigent
circumstances exist sufficient to excuse the failure of the applicant
to appear personally and that sufficient grounds for granting the application
have been shown. i. An order for emergency, ex parte relief shall be granted
upon good cause shown and shall remain in effect until a judge of the
Family Part issues a further order. Any temporary order hereunder is immediately
appealable for a plenary hearing de novo not on the record before any
judge of the Family Part of the county in which the plaintiff resides
or is sheltered if that judge issued the temporary order or has access
to the reasons for the issuance of the temporary order and sets forth
in the record the reasons for the modification or dissolution. The denial
of a temporary restraining order by a municipal court judge and subsequent
administrative dismissal of the complaint shall not bar the victim from
refiling a complaint in the Family Part based on the same incident and
receiving an emergency, ex parte hearing de novo not on the record before
a Family Part judge, and every denial of relief by a municipal court judge
shall so state. j. Emergency relief may include forbidding the defendant
from returning to the scene of the domestic violence, forbidding the defendant
from possessing any firearm or other weapon enumerated in subsection r.
of N.J.S. 2C:39-1, ordering the search for and seizure of any such weapon
at any location where the judge has reasonable cause to believe the weapon
is located and the seizure of any firearms purchaser identification card
or permit to purchase a handgun issued to the defendant and any other
appropriate relief. The judge shall state with specificity the reasons
for and scope of the search and seizure authorized by the order. The provisions
of this subsection prohibiting a defendant from possessing a firearm or
other weapon shall not apply to any law enforcement officer while actually
on duty, or to any member of the Armed Forces of the United States or
member of the National Guard while actually on duty or traveling to or
from an authorized place of duty. k. The judge may permit the defendant
to return to the scene of the domestic violence to pick up personal belongings
and effects but shall, in the order granting relief, restrict the time
and duration of such permission and provide for police supervision of
such visit. l. An order granting emergency relief, together with
the complaint or complaints, shall immediately be forwarded to the appropriate
law enforcement agency for service on the defendant, and to the police
of the municipality in which the plaintiff resides or is sheltered, and
shall immediately be served upon the defendant by the police, except that
an order issued during regular court hours may be forwarded to the sheriff
for immediate service upon the defendant in accordance with the Rules
of Court. If personal service cannot be effected upon the defendant, the
court may order other appropriate substituted service. At no time shall
the plaintiff be asked or required to serve any order on the defendant.
m.(Deleted by amendment, P.L. 1994, c.94.) n. Notice of temporary restraining
orders issued pursuant to this section shall be sent by the clerk of the
court or other person designated by the court to the appropriate chiefs
of police, members of the State Police and any other appropriate law enforcement
agency or court. o.(Deleted by amendment, P.L. 1994, c.94.) p. Any temporary
or permanent restraining order issued pursuant to this act shall be in
effect throughout the State, and shall be enforced by all law enforcement
officers. q. Prior to the issuance of any temporary or permanent restraining
order issued pursuant to this section, the court shall order that a search
be made of the domestic violence central registry with regard to the defendant's
record.
2C:25-28.1. In-house restraining order prohibited 2. Notwithstanding
any provision of P.L. 1991, c.261 (C. 2C:25-17 et seq.) to the contrary,
no order issued by the Family Part of the Chancery Division of the Superior
Court pursuant to section 12 or section 13 of P.L. 1991, c.261 (C. 2C:25-28
or 2C:25-29) regarding emergency, temporary or final relief shall include
an in-house restraining order which permits the victim and the defendant
to occupy the same premises but limits the defendant's use of that premises.
2C:25-29 Hearing procedure; relief. 13. a. A hearing shall
be held in the Family Part of the Chancery Division of the Superior Court
within 10 days of the filing of a complaint pursuant to section 12 of
P.L. 1991, c.261 (C. 2C:25-28) in the county where the ex parte restraints
were ordered, unless good cause is shown for the hearing to be held elsewhere.
A copy of the complaint shall be served on the defendant in conformity
with the Rules of Court. If a criminal complaint arising out of the same
incident which is the subject matter of a complaint brought under P.L.
1981, c.426 (C. 2C:25-1 et seq.) or P.L. 1991, c.261 (C. 2C:25-17 et seq.)
has been filed, testimony given by the plaintiff or defendant in the domestic
violence matter shall not be used in the simultaneous or subsequent criminal
proceeding against the defendant, other than domestic violence contempt
matters and where it would otherwise be admissible hearsay under the rules
of evidence that govern where a party is unavailable. At the hearing the
standard for proving the allegations in the complaint shall be by a preponderance
of the evidence. The court shall consider but not be limited to the following
factors:
(1)The previous history of domestic violence between the
plaintiff and defendant, including threats, harassment and physical abuse;
(2)The existence of immediate danger to person or property;
(3)The financial circumstances of the plaintiff and defendant;
(4)The best interests of the victim and any child;
(5)In determining custody and parenting time the protection
of the victim's safety; and
(6)The existence of a verifiable order of protection from
another jurisdiction. An order issued under this act shall
only restrain or provide damages payable from a person against whom a
complaint has been filed under this act and only after a finding or an
admission is made that an act of domestic violence was committed by that
person. The issue of whether or not a violation of this act occurred,
including an act of contempt under this act, shall not be subject to mediation
or negotiation in any form. In addition, where a temporary or final order
has been issued pursuant to this act, no party shall be ordered to participate
in mediation on the issue of custody or parenting time.
b. In proceedings in which complaints for restraining orders
have been filed, the court shall grant any relief necessary to prevent
further abuse. In addition to any other provisions, any restraining order
issued by the court shall bar the defendant from purchasing, owning, possessing
or controlling a firearm and from receiving or retaining a firearms purchaser
identification card or permit to purchase a handgun pursuant to N.J.S.
2C:58-3 during the period in which the restraining order is in effect
or two years whichever is greater, except that this provision shall not
apply to any law enforcement officer while actually on duty, or to any
member of the Armed Forces of the United States or member of the National
Guard while actually on duty or traveling to or from an authorized place
of duty. At the hearing the judge of the Family Part of the Chancery Division
of the Superior Court may issue an order granting any or all of the following
relief:
(1) An order restraining the defendant from subjecting
the victim to domestic violence, as defined in this act.
(2) An order granting exclusive possession to the plaintiff
of the residence or household regardless of whether the residence or household
is jointly or solely owned by the parties or jointly or solely leased
by the parties. This order shall not in any manner affect title or interest
to any real property held by either party or both jointly. If it is not
possible for the victim to remain in the residence, the court may order
the defendant to pay the victim's rent at a residence other than the one
previously shared by the parties if the defendant is found to have a duty
to support the victim and the victim requires alternative housing.
(3) An order providing for parenting time. The order shall
protect the safety and well-being of the plaintiff and minor children
and shall specify the place and frequency of parenting time. Parenting
time arrangements shall not compromise any other remedy provided by the
court by requiring or encouraging contact between the plaintiff and defendant.
Orders for parenting time may include a designation of a place of parenting
time away from the plaintiff, the participation of a third party, or supervised
parenting time. (a) The court shall consider a request by a custodial
parent who has been subjected to domestic violence by a person with parenting
time rights to a child in the parent's custody for an investigation or
evaluation by the appropriate agency to assess the risk of harm to the
child prior to the entry of a parenting time order. Any denial of such
a request must be on the record and shall only be made if the judge finds
the request to be arbitrary or capricious. (b) The court shall consider
suspension of the parenting time order and hold an emergency hearing upon
an application made by the plaintiff certifying under oath that the defendant's
access to the child pursuant to the parenting time order has threatened
the safety and well-being of the child.
(4) An order requiring the defendant to pay to the victim
monetary compensation for losses suffered as a direct result of the act
of domestic violence. The order may require the defendant to pay the victim
directly, to reimburse the Victims of Crime Compensation Board for any
and all compensation paid by the Victims of Crime Compensation Board directly
to or on behalf of the victim, and may require that the defendant reimburse
any parties that may have compensated the victim, as the court may determine.
Compensatory losses shall include, but not be limited to, loss of earnings
or other support, including child or spousal support, out-of-pocket losses
for injuries sustained, cost of repair or replacement of real or personal
property damaged or destroyed or taken by the defendant, cost of counseling
for the victim, moving or other travel expenses, reasonable attorney's
fees, court costs, and compensation for pain and suffering. Where appropriate,
punitive damages may be awarded in addition to compensatory damages.
(5) An order requiring the defendant to receive professional
domestic violence counseling from either a private source or a source
appointed by the court and, in that event, requiring the defendant to
provide the court at specified intervals with documentation of attendance
at the professional counseling. The court may order the defendant to pay
for the professional counseling. No application by the defendant to dissolve
a final order which contains a requirement for attendance at professional
counseling pursuant to this paragraph shall be granted by the court unless,
in addition to any other provisions required by law or conditions ordered
by the court, the defendant has completed all required attendance at such
counseling.
(6) An order restraining the defendant from entering the
residence, property, school, or place of employment of the victim or of
other family or household members of the victim and requiring the defendant
to stay away from any specified place that is named in the order and is
frequented regularly by the victim or other family or household members.
(7) An order restraining the defendant from making contact
with the plaintiff or others, including an order forbidding the defendant
from personally or through an agent initiating any communication likely
to cause annoyance or alarm including, but not limited to, personal, written,
or telephone contact with the victim or other family members, or their
employers, employees, or fellow workers, or others with whom communication
would be likely to cause annoyance or alarm to the victim.
(8) An order requiring that the defendant make or continue
to make rent or mortgage payments on the residence occupied by the victim
if the defendant is found to have a duty to support the victim or other
dependent household members; provided that this issue has not been resolved
or is not being litigated between the parties in another action.
(9) An order granting either party temporary possession
of specified personal property, such as an automobile, checkbook, documentation
of health insurance, an identification document, a key, and other personal
effects.
(10) An order awarding emergency monetary relief, including
emergency support for minor children, to the victim and other dependents,
if any. An ongoing obligation of support shall be determined at a later
date pursuant to applicable law.
(11) An order awarding temporary custody of a minor child.
The court shall presume that the best interests of the child are served
by an award of custody to the non-abusive parent.
(12) An order requiring that a law enforcement officer
accompany either party to the residence or any shared business premises
to supervise the removal of personal belongings in order to ensure the
personal safety of the plaintiff when a restraining order has been issued.
This order shall be restricted in duration.
(13) (Deleted by amendment, P.L. 1995, c.242).
(14) An order granting any other appropriate relief for
the plaintiff and dependent children, provided that the plaintiff consents
to such relief, including relief requested by the plaintiff at the final
hearing, whether or not the plaintiff requested such relief at the time
of the granting of the initial emergency order.
(15) An order that requires that the defendant report to
the intake unit of the Family Part of the Chancery Division of the Superior
Court for monitoring of any other provision of the order.
(16) In addition to the order required by this subsection
prohibiting the defendant from possessing any firearm, the court may also
issue an order prohibiting the defendant from possessing any other weapon
enumerated in subsection r. of N.J.S. 2C:39-1 and ordering the search
for and seizure of any firearm or other weapon at any location where the
judge has reasonable cause to believe the weapon is located. The judge
shall state with specificity the reasons for and scope of the search and
seizure authorized by the order.
(17) An order prohibiting the defendant from stalking or
following, or threatening to harm, to stalk or to follow, the complainant
or any other person named in the order in a manner that, taken in the
context of past actions of the defendant, would put the complainant in
reasonable fear that the defendant would cause the death or injury of
the complainant or any other person. Behavior prohibited under this act
includes, but is not limited to, behavior prohibited under the provisions
of P.L. 1992, c.209 (C. 2C:12-10).
(18) An order requiring the defendant to undergo a psychiatric
evaluation. c. Notice of orders issued pursuant to this section shall
be sent by the clerk of the Family Part of the Chancery Division of the
Superior Court or other person designated by the court to the appropriate
chiefs of police, members of the State Police and any other appropriate
law enforcement agency. d. Upon good cause shown, any final order may
be dissolved or modified upon application to the Family Part of the 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.
e. Prior to the issuance of any order pursuant to this section, the court
shall order that a search be made of the domestic violence central registry.
2C:25-29.1 Civil penalty for certain domestic violence offenders. 1. In
addition to any other disposition, any person found by the court in a
final hearing pursuant to section 13 of P.L. 1991, c.261 (C. 2C:25-29)
to have committed an act of domestic violence shall be ordered by the
court to pay a civil penalty of at least $50, but not to exceed $500.
In imposing this civil penalty, the court shall take into consideration
the nature and degree of injury suffered by the victim. The court may
waive the penalty in cases of extreme financial hardship. 2C:25-29.2 Collection,
distribution of civil penalties collected. 2. All civil penalties imposed
pursuant to section 1 of P.L. 2001, c.195 (C. 2C:25-29.1) shall be collected
as provided by the Rules of Court. All moneys collected shall be forwarded
to the Domestic Violence Victims' Fund established pursuant to section
3 of P.L. 2001, c.195 (C.30:14-15). 2C:25-29.3 Rules of Court. 4. The
Supreme Court may promulgate Rules of Court to effectuate the purposes
of this act. 2C:25-29.4 Surcharge for domestic violence offender to fund
grants. 50. In addition to any other penalty, fine or charge imposed pursuant
to law, a person convicted of an act of domestic violence, as that term
is defined by subsection a. of section 3 of P.L. 1991, c.261 (C. 2C:25-19),
shall be subject to a surcharge in the amount of $100 payable to the Treasurer
of the State of New Jersey for use by the Department of Human Services
to fund grants for domestic violence prevention, training and assessment.
2C:25-30. Violations, penalties 14. Except as provided below,
a violation by the defendant of an order issued pursuant to this act shall
constitute an offense under subsection b. of N.J.S. 2C:29-9 and each order
shall so state. All contempt proceedings conducted pursuant to N.J.S.
2C:29-9 involving domestic violence orders, other than those constituting
indictable offenses, shall be heard by the Family Part of the Chancery
Division of the Superior Court. All contempt proceedings brought pursuant
to P.L. 1991, c.261 (C. 2C:25-17 et seq.) shall be subject to any rules
or guidelines established by the Supreme Court to guarantee the prompt
disposition of criminal matters. Additionally, and notwithstanding the
term of imprisonment provided in N.J.S. 2C:43-8, any person convicted
of a second or subsequent non indictable domestic violence contempt offense
shall serve a minimum term of not less than 30 days. Orders entered pursuant
to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13
of this act shall be excluded from enforcement under subsection b. of
N.J.S. 2C:29-9; however, violations of these orders may be enforced in
a civil or criminal action initiated by the plaintiff or by the court,
on its own motion, pursuant to applicable court rules.
2C:25-31 Contempt, law enforcement procedures. 15. Where
a law enforcement officer finds that there is probable cause that a defendant
has committed contempt of an order entered pursuant to the provisions
of P.L. 1981, c.426 (C. 2C:25-1 et seq.) or P.L. 1991, c.261 (C. 2C:25-17
et seq.), the defendant shall be arrested and taken into custody by a
law enforcement officer. The law enforcement officer shall follow these
procedures: The law enforcement officer shall transport the defendant
to the police station or such other place as the law enforcement officer
shall determine is proper. The law enforcement officer shall: a. Conduct
a search of the domestic violence central registry and sign a complaint
concerning the incident which gave rise to the contempt charge; b. Telephone
or communicate in person or by facsimile with the appropriate judge assigned
pursuant to this act and request bail be set on the contempt charge; c.
If the defendant is unable to meet the bail set, take the necessary steps
to insure that the defendant shall be incarcerated at police headquarters
or at the county jail; and d. During regular court hours, the defendant
shall have bail set by a Superior Court judge that day. On weekends, holidays
and other times when the court is closed, the officer shall arrange to
have the clerk of the Family Part notified on the next working day of
the new complaint, the amount of bail, the defendant's whereabouts and
all other necessary details. In addition, if a municipal court judge set
the bail, the arresting officer shall notify the clerk of that municipal
court of this information.
2C:25-32. Alleged contempt, complainant's procedure 16.
Where a person alleges that a defendant has committed contempt of an order
entered pursuant to the provisions of P.L. 1981, c.426 (C. 2C:25-1 et
seq.) or P.L. 1991, c.261, but where a law enforcement officer has found
that there is not probable cause sufficient to arrest the defendant, the
law enforcement officer shall advise the complainant of the procedure
for completing and signing a criminal complaint alleging a violation of
N.J.S. 2C:29-9. During regular court hours, the assistance of the clerk
of the Family Part of the Chancery Division of the Superior Court shall
be made available to such complainants. Nothing in this section shall
be construed to prevent the court from granting any other emergency relief
it deems necessary.
2C:25-33 Records of applications for relief; reports; confidentiality;
forms. 17. a. The Administrative Office of the Courts shall, with the
assistance of the Attorney General and the county prosecutors, maintain
a uniform record of all applications for relief pursuant to sections 9,
10, 11, 12, and 13 of P.L. 1991, c.261 (C. 2C:25-25, C. 2C:25-26, C. 2C:25-27,
C. 2C:25-28, and C. 2C:25-29). The record shall include the following
information: (1)The number of criminal and civil complaints filed in all
municipal courts and the Superior Court; (2)The sex of the parties; (3)The
relationship of the parties; (4)The relief sought or the offense charged,
or both; (5)The nature of the relief granted or penalty imposed, or both,
including, but not limited to, the following: (a)custody; (b)child support;
(c)the specific restraints ordered; (d)any requirements or conditions
imposed pursuant to paragraphs (1) through (18) of subsection b. of section
13 of P.L. 1991, c.261 (C. 2C:25-29), including but not limited to professional
counseling or psychiatric evaluations; (6)The effective date of each order
issued; and (7)In the case of a civil action in which no permanent restraints
are entered, or in the case of a criminal matter that does not proceed
to trial, the reason or reasons for the disposition. It shall be the duty
of the Director of the Administrative Office of the Courts to compile
and report annually to the Governor, the Legislature and the Advisory
Council on Domestic Violence on the data tabulated from the records of
these orders. All records maintained pursuant to this act shall be confidential
and shall not be made available to any individual or institution except
as otherwise provided by law. b. In addition to the provisions of subsection
a. of this section, the Administrative Office of the Courts shall, with
the assistance of the Attorney General and the county prosecutors, create
and maintain uniform forms to record sentencing, bail conditions and dismissals.
The forms shall be used by the Superior Court and by every municipal court
to record any order in a case brought pursuant to this act. Such recording
shall include but not be limited to, the specific restraints ordered,
any requirements or conditions imposed on the defendant, and any conditions
of bail.
2C:25-34 Domestic violence restraining orders, central registry.
1. The Administrative Office of the Courts shall establish and maintain
a central registry of all persons who have had domestic violence restraining
orders entered against them, all persons who have been charged with a
crime or offense involving domestic violence, and all persons who have
been charged with a violation of a court order involving domestic violence.
All records made pursuant to this section shall be kept confidential and
shall be released only to: a. A public agency authorized to investigate
a report of domestic violence; b. A police or other law enforcement agency
investigating a report of domestic violence, or conducting a background
investigation involving a person's application for a firearm permit or
employment as a police or law enforcement officer or for any other purpose
authorized by law or the Supreme Court of the State of New Jersey; c.
A court, upon its finding that access to such records may be necessary
for determination of an issue before the court; or d. A surrogate, in
that person's official capacity as deputy clerk of the Superior Court,
in order to prepare documents that may be necessary for a court to determine
an issue in an adoption proceeding. Any individual, agency, surrogate
or court which receives from the Administrative Office of the Courts the
records referred to in this section shall keep such records and reports,
or parts thereof, confidential and shall not disseminate or disclose such
records and reports, or parts thereof; provided that nothing in this section
shall prohibit a receiving individual, agency, surrogate or court from
disclosing records and reports, or parts thereof, in a manner consistent
with and in furtherance of the purpose for which the records and reports
or parts thereof were received. Any individual who disseminates or discloses
a record or report, or parts thereof, of the central registry, for a purpose
other than investigating a report of domestic violence, conducting a background
investigation involving a person's application for a firearm permit or
employment as a police or law enforcement officer, making a determination
of an issue before the court, or for any other purpose other than that
which is authorized by law or the Supreme Court of the State of New Jersey,
shall be guilty of a crime of the fourth degree.
2C:25-35 Rules of Court concerning central registry for
domestic violence. 7. The Supreme Court of New Jersey may adopt Rules
of Court appropriate or necessary to effectuate the purposes of this act.
PORTIONS OF THIS ARTICLE WERE PUBLISHED BY MR. VERCAMMEN
IN THE NEW JERSEY LAWYER, THE STATE'S LARGEST LEGAL PUBLICATION. KENNETH
VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison,
NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you
did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and
urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample,
which could be used by law enforcement for the investigation of criminal
activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who
has suffered a loss and if the court finds that you are able or will be
able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required
to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported
by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose
your driver's license for 6 months - 2years. You must pay a Law Enforcement
Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment
of $50 ($100 minimum if you are convicted of a crime of violence) for
each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for
each conviction.
14. If you are being sentenced to probation, you must pay a fee of up
to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible.
There are a number of viable defenses and arguments which can be pursued
to achieve a successful result. Advocacy, commitment, and persistence
are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the
following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific
term of years which shall be fixed by the court and shall be between 10
years and 20 years;
(2) In the case of a crime of the second degree, for a specific term
of years which shall be fixed by the court and shall be between five years
and 10 years;
(3) In the case of a crime of the third degree, for a specific term of
years which shall be fixed by the court and shall be between three years
and five years;
(4) In the case of a crime of the fourth degree, for a specific term
which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions.
A person who has been convicted of an offense may be sentenced to pay
a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately
to determine you rights and obligations to the court. Current criminal
charge researched by Kenneth Vercammen, Esq. 732-572-0500
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