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Restraining Orders without Domestic Violence

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One legal tool available to victims or potential victims of domestic violence is the ability to seek a temporary or final restraining order, also known as a “TRO” or “FRO”, respectively. The court relies on evidence presented by the parties to determine if a TRO or FRO is necessary, and must weigh an individual’s freedom to choose autonomously where he or she likes to come and go against the likelihood of harm. An incident of domestic violence is strong evidence that a restraining order is necessary, but it is not necessary for the court to order one. Under the Prevention of Domestic Violence Act (PDVA), a New Jersey court may put into place such TROs or FROs without a prior incident. It applies the “Silver test,” which gets its name from Silver v. Silver and can look to evidence of harassment, even non-physical, as sufficient. 

A New Jersey Appellate Court recently faced this question in B.K. v. R.G.  The   case involved a woman and a man who were formerly in a relationship. They dated for over a year. During that time, they separated for 3 months after a number of disagreements and domestic problems. They later reconciled, living together for the last 8 months of their relationship, before finally separating again for the last time. 

Shortly after that, the woman filed for injunctive relief (relief that prohibits someone from doing something) under the PDVA. She claimed that the man had “committed acts of domestic violence, specifically harassment” which included verbal harassment and harassment through social media. The woman gave examples of when the former boyfriend threatened her, including an instance when he grabbed her arm and threatened to throw her down the stairs, and created issues with her social media. She said that he made multiple fake social media accounts, such as those on a popular dating website called “Plenty of Fish,” and gave out her personal information. 

The court applied the Silver test, a two-prong analysis that typically involves the assessment of whether there was an actual act of physical violence. The first part of the Silver test assesses whether “the plaintiff has proven, by a preponderance of the evidence, that one or more of the predicate acts set forth in [the New Jersey harassment statute] has occurred.” The court was therefore forced to decide whether harassment had taken place even when an act of physical violence had not. 

Harassment occurs when “with purpose to harass another” he or she makes or causes to be made, a communication or communications anonymously or at extremely inconvenient hours or in offensively coarse language, or any other manner likely to cause annoyance or alarm . . . engages in any other course or alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person. N.J.S.A. 2:33-2(a).

The law also allows a judge to infer from the evidence presented and common sense and experience an intent to harass. The judge here found that between the Defendant’s communications on the internet, fake dating profiles and other comments, he was undoubtedly harassing the woman and an FRO was appropriate. The Appeals Court agreed.


B.K. v. R.G. shows the flexibility of courts. Generally, the law is careful not to consider potential acts before they have been committed. But it must balance this with the likelihood that harm will occur in certain circumstances. The New Jersey Appellate Court in this case looked at the man’s history with this woman and concluded that in light of his harassing acts and verbal threats, there was enough evidence to warrant a restraining order. 

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