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Final Restraining Orders Require Factual Findings

by | Dec 29, 2016 | Uncategorized


A December 5th Appeals Court decision discussed 2 rare problems in a domestic violence case. First, can a judge issue a Final Restraining Order (FRO) simply because the 2 sides agree to it, without an examination of the facts? Second, if both husband and wife agree to dismiss an appeal after an FRO was issued, can they do that? The lower court judge said absolutely not in both circumstances.

The appeal asked the higher court to figure out if a final restraining order (FRO) was improperly entered because the lower court judge didn’t conduct the proper factual inquiry – to decide if there was actually an act of domestic violence in the first place. Only a few days before that court was to hear the case, the 2 sides told the court they “had agreed to dismiss this appeal and allow for the perpetuation of the FRO.” Quite surprisingly, the court said, “Notwithstanding their agreement, the interests of justice require a disposition of the appeal’s merits.”

The wife filed a complaint under New Jersey’s Domestic Violence Act (N.J.S.A. 2C:25-17 to -35) against her husband, to get a temporary restraining order. Instead of conducting the required “factual inquiry” into whether there was actually an act of domestic violence, the lower court judge simply “asked whether they understood and voluntarily consented to the agreement.”

The husband appealed, not knowing that he would later reach an agreement that would enforce the FRO. The husband and wife asked the court to dismiss the appeal, and the court responded that they were “invited to file an application asking it to dismiss the appeal without deciding [its] merits.” They didn’t do that.

Usually, when all sides voluntarily agree to a dismissal and tell a court that they have settled or reached an agreement, litigation ends. But the Appeals Court didn’t do that here. Why? Because it felt that domestic violence matters require special attention.

At the lower court’s hearing, the couple told the judge that they reached an agreement that “called for defendant’s consent to an FRO in exchange for plaintiff’s consent to defendant’s exclusive possession of the martial home pending further order in the [divorce case].” The upper court said that an FRO places burdens on the state, and has the capacity to trigger criminal charges, police involvement, and inclusion in a database. Moreover, it felt that an FRO’s “entry, continuation, or dismissal” as a bargaining chip in a settlement is simply unacceptable.

Therefore, the Appeal Court’s hands were tied – it was forced to consider the merits of the appeal. Which it did – in one sentence: “A domestic violence final restraining order may not be entered by consent or without a factual foundation.”

The FRO was vacated, the TRO (Temporary Restraining Order) reinstated, and the case was sent back to the trial court for a final hearing.

This case is highly unusual because it involves a court making a decision about something that both sides to a domestic violence dispute resolved between themselves. It is a good lesson that couples in this situation should at least get the input of experienced lawyers, to avoid prolonged and expensive situations like this, when people are subject to the authority of the court against their will.

The opinion also serves as a reminder that courts do not treat things like Final Restraining Orders lightly and that they can’t be used as bargaining chips in a divorce. Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.

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