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When a restraining order is issued, it imposes significant restrictions on the person who is the subject of the order (the respondent). It impacts their freedom, reputation, and daily activities.
While these orders are designed to protect individuals from harm, there are instances where they may be unjustly granted or contain errors that merit reconsideration. In such a case, a restraining order can be appealed. Appealing a restraining order can result in a new hearing, a modification of the order, or even a reversal.
This article provides an overview of restraining orders and how to appeal them. The complexities of restraining orders and appealing them are best handled by an experienced restraining order attorney, such as those at Rosenblum Law. We can provide expert legal advice, ensure proper filing of documents, and effectively represent you in court.
What is a Restraining Order?
A restraining order is a court-ordered ban on any contact between the respondent and the person who filed for the order (the petitioner) after an offense has occurred. The type of restraining order depends on the situation.
- Domestic Violence Restraining Order: Filed in cases of domestic violence, available to any adult or emancipated minor who has or had a relationship (married, cohabiting, dating, or child-related) with the respondent, and can prove abuse and need for protection.
- Sexual Assault Restraining Order: Filed in civil court without requiring a relationship with the respondent, the petitioner must only prove experience of sexual assault.
Restraining orders can be either temporary (a TRO) or final (a FRO). The court issues a TRO based on initial evidence provided by the petitioner, and the order is effective until the FRO hearing, which is scheduled within 10 days from when the TRO is filed. At the hearing, an FRO will be issued if the court finds it necessary to protect the petitioner. An FRO is permanent unless lifted under specific circumstances.
Once a FRO is issued, the respondent must pay a fine and surrender any firearms. Additional provisions of the FRO may include:
- Prohibiting the respondent from going to the petitioner’s home, school, or workplace
- Mandating therapy or counseling sessions for the respondent
- Requiring payment of the petitioner’s legal costs
- Directing the respondent to relinquish a pet to the petitioner
- Establishing or maintaining visitation rights and arrangements for child support or custody
It’s important to note that not all of these mandates will apply to every FRO. A respondent of an FRO should read it carefully and consult with an attorney to understand the specific requirements and any places in which they are prohibited from.
Consequences of Violating a Restraining Order
Someone who violates a restraining order is held in contempt of court and faces substantial penalties. A first offense can lead to imprisonment for up to six months and a fine of $1,000. For a second offense, the minimum sentence is 30 days in county jail. If the violation involves committing an additional crime, the defendant may be charged with a 4th-degree felony, punishable by up to 18 months in prison and a fine reaching $25,000.
Because of the gravity of these consequences, it is highly advisable for anyone accused of violating a restraining order to seek immediate legal representation from a skilled criminal defense attorney.
Grounds for Appealing a Restraining Order
To appeal a restraining order, the respondent must assert that the court made a legal error in granting the order. An appeal can be filed on more than one ground, but grounds not included in the initial appeal cannot be added later. Therefore, it is recommended to review the case with a lawyer to ensure that all possible reasons for an appeal are explored.
Some possible grounds for appeal may include:
- Incorrect interpretation or application of the law: When the judge makes a mistake in applying legal principles correctly, it could be argued as grounds for appeal.
- Misinterpretation of the facts of the case: Includes a misremembered testimony.
- Misapplication of the rules of evidence: Mistakes about specific laws that control what evidence is usable in a court decision may invalidate the restraining order.
- Incomplete findings: The judge’s opinion must thoroughly detail the grounds for the restraining order, including the prior history of domestic violence, the specific incident that triggered the order, and the necessity of the restraining order to protect the plaintiff’s well-being and safety. Any omission of these elements can be grounds for reversing the final restraining order.
- Due process violations: Due process rights mandate that the defendant receive legal notice of the FRO hearing and have an opportunity to present evidence in their defense.
The Appeal Process for a Restraining Order
The appeal process for a restraining order generally involves the following process:
- A Notice of Appeal must be filed within 45 days of the trial court’s restraining order ruling to begin the appeals process. A signed copy of any judgments, orders, or decisions listed in the appeal must be attached.
- A Civil Case Information Statement must be filled out and attached.
- When the Notice of Appeal is filed, the appellant must submit a transcript request form to provide the Appellate Division with the original trial transcripts. The request form should be attached to the Notice of Appeal as well.
- A filing fee of $250 must be paid via check or money order, payable to the Treasurer, State of New Jersey
- Each party and the judge that issued the order must be served with a copy.
- The packet must be hand-delivered or mailed to the Appellate Division.
Potential Outcomes of an Appeal
The appeal of a restraining order can have several possible outcomes:
- An affirmation of the original order.
- A modification of the order, such as turning an FRO into a TRO or changing the terms.
- A complete reversal of the order.
- A new hearing date, which will simply push off the decision to a later date when more information can be made available.
The Importance of an Attorney in the Appeal Process
An attorney can help with the appeal of a restraining order in a number of ways.
- Expert Knowledge: Attorneys understand complex legal procedures and standards of review.
- Experience: They have experience crafting persuasive legal arguments and identifying errors in the trial court’s proceedings.
- Document Preparation: Attorneys can ensure all necessary documents and briefs are properly prepared, researched, and filed.
- Legal Strategy: They can develop effective legal strategies tailored to the specifics of each case.
- Representation: Attorneys can effectively represent their clients in court, articulating their case clearly and compellingly.
- Objective Perspective: They can provide an objective viewpoint and mitigate emotional involvement.
- Increased Chances of Success: Their expertise generally increases the likelihood of a favorable outcome.
- Navigating Complexities: Attorneys can help navigate the complexities and nuances of appellate law.
FAQs
There are several factors to consider:
Time: An appeal can take a year or more to complete.
Expense: Appeals are challenging without a lawyer, and hiring an appellate attorney can be costly. There are also filing fees (typically around $250) and transcript costs, though some states waive these for low-income individuals.
Outcome: Winning an appeal often results in a remand, requiring another trial to correct errors. This doesn’t guarantee a favorable outcome, as the trial court could still rule against you, possibly with the same judge.
Emotional Toll and Safety Concerns: The lengthy appeals process extends conflict and uncertainty, which can provoke an abusive partner and lead to further abuse.
If a restraining order is in place, there should be no contact between the parties. For those with children, it is advisable to have a trusted person handle child exchanges. The court can grant parenting time and order financial support in the Final Restraining Order, with the terms of the parenting time specified in the FRO. If the FRO is appealed or modified, child custody, support, or visitation decisions could change as well based on the discretion of the judge.
To drop a restraining order, go to the domestic violence unit at your local courthouse and inform them of your decision. You will be interviewed to ensure you are not being pressured to dismiss the order. Then, you will appear before a judge who will confirm your intent. If the judge is satisfied that you are not being coerced, they will enter an order of dismissal, and the restraining order will be dissolved.
Contact a Restraining Order Lawyer from Rosenblum Law Today
No matter your reason for appealing a restraining order, navigating the complexities of an appeal is best managed with the assistance of a seasoned attorney, who can help gather evidence, prepare and file necessary documents, and represent you effectively in court.
At Rosenblum Law, our skilled attorneys excel in representing petitioners and defendants alike. Contact us today for a free consultation and case evaluation.
Last updated: Aug 20, 2024
