How “Final” is a Final Restraining Order?

Since its’ passage in 1991, the Prevention of Domestic Violence Act or “PDVA” has afforded protection to New Jersey residents who have been the victim of domestic violence. The PDVA has been amended and interpreted on countless occasions over the years and is one of the most strict and protective laws of its kind in the country.

If an individual alleges that they have been the victim of domestic violence and can demonstrate this to a Judge, an emergent Order of protection will be entered. This temporary restraining order or “TRO” will be issued and served upon the other party who will then be restrained from having any contact with the complaining party. At the same time the matter will be scheduled for a hearing, to occur in approximately ten days, where testimony will be taken under oath to determine whether an act of domestic violence occurred. At the conclusion of the hearing the Court will determine whether an act of domestic violence occurred and, if so, the terms of the temporary restraining order will become final and/or modified as final. If the Court finds that an act or acts of domestic violence occurred, the Court has the authority to impose a variety of restrictions and prohibitions in what will become a Final Restraining Order or “FRO.”

Over the years I have had both plaintiffs and defendants inquire as to how “final“ their Final Restraining Order or FRO actually is. The answer varies from state to state.

In California, a restraining order can be valid for up to five years and, at the conclusion of the five-year period, the protected party can ask the court to extend the restraints for an additional five years. In Texas, protective orders are effective for a maximum of two years with the subsequent possibility of a court entering an order to extend the time if certain factors are met regarding the severity of the underlying act itself. In New York, the courts can issue “permanent” orders of protection which last one year or up to five years.

Final Restraining Orders entered in New Jersey are as stringent as any jurisdiction in the country, in that, they do not expire. They continue unless there is a subsequent Order either vacating the restraints or modifying them.

New Jersey courts have recognized that under certain limited conditions Final Restraining Orders can be vacated and/or modified. In the case of Carfagno vs. Carfagno, the court gave a non-inclusive list of standards to be assessed by a court when an individual makes an application to vacate or modify a Final Restraining Order. The factors are:

1. whether the victim has consented to lift the restraining order;
2. whether the victim fears the defendant;
3. the nature of the relationship between the parties today;
4. the number of times that the defendant has been convicted of contempt for violating the order;
5. whether the defendant has a continuing involvement with drug or alcohol abuse;
6. whether the defendant has been involved in other violent acts with other persons;
7. whether the defendant has engaged in counseling;
8. the age and health of the defendant;
9. whether the victim is acting in good faith when opposing the defendant’s request;
10. whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and
11. other factors deemed relevant by the court.

Court cases since the Carfagno decision have interpreted these factors cautiously in determining whether an FRO should be vacated or modified. Also, two important considerations to understand are that the party against whom the Order was entered cannot solely rely upon the victim’s consent to vacate the Order and that the Carfagno factors are to be weighed “qualitatively and not quantitatively.”

To summarize, a judicial determination to vacate or grant modifications to a final restraining Order is highly fact sensitive and always rests in the discretion of the Court. Our New Jersey Courts will use the factors listed above together with subsequent Court interpretations to render a decision.

If you are seeking to vacate or modify a Final Restraining Order entered against you or if you need to defend against a Defendant seeking to vacate or modify your Order of protection, it is always best to consult with an attorney.