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A restraining order, otherwise known as an order of protection, is a civil court order that prevents the respondent (the person subject to the order) from contacting the petitioner (the person who sought the order). The purpose of a restraining order is to protect the petitioner from violence or harassment. That said, false restraining orders undermine the legal system and cause numerous problems for the respondent.
It is important to address false accusations in a restraining order case with legal assistance from experienced attorneys like those at Rosenblum Law. Rosenblum Law attorneys are able to address false restraining orders and restore rights to respondents. Contact us today, and keep reading for more information on what restraining orders are, the implications of falsely filing these orders, and the role of an attorney in defending wrongly accused individuals.
Understanding Restraining Orders in New Jersey
There are two types of restraining orders: temporary and final. A temporary restraining order (TRO) is often issued automatically and lasts until the court hearing, usually within 10 days. A final restraining order (FRO) is a permanent restraining order issued (if the petitioner is successful) after the hearing that remains in place until either party petitions the court to end it.
The legal grounds for obtaining a restraining order are complex. A domestic violence restraining order requires an incident of domestic violence. A restraining order can also be obtained for harassment or other violent crimes. Sexual violence restraining orders are only issued when there is an incident of sexual assault or attempted sexual assault.
However, the process for obtaining and enforcing restraining orders in New Jersey is relatively simple:
- The petitioner applies to the court for a TRO, and a hearing is scheduled within 10 days for the FRO.
- During the hearing, the petitioner must prove that the restraining order is needed. The respondent can argue against the petitioner’s accusations.
- If the FRO is issued, it is upheld by law enforcement; if the respondent violates the restraining order, they can be arrested and held in contempt of court.
It is important to have adequate legal representation to help navigate the law and present evidence against a restraining order, especially if it is based on false grounds. Without good legal representation, the chances that a false restraining order will be issued are much greater.
The Impact of a False Restraining Order
A restraining order has a number of legal and personal consequences, starting with a civil penalty of $50 to $500 allowed by Section 2C:25-29.1. The respondent also will be barred from owning or possessing firearms, and they must forfeit any firearms they currently own. They may also have their freedoms limited, as there may be places that the restraining order prohibits the defendant, or person issued the order, from entering because the petitioner frequents these locations. Examples of this include the petitioner’s workplace, school, and home.
Restraining orders can have other consequences. While they are not part of the respondent’s criminal record, they are still a matter of public record. This means that a restraining order could affect opportunities in employment, housing, and other areas that require a background check. Personal relationships can also be affected, especially among shared friends and family.
Finally, restraining orders can have an emotional and psychological toll. Especially if the restraining order is pursued by someone the respondent trusted and cared for, restraining orders can lead to periods of depression and low self-esteem.
Legal Process for Fighting a False Restraining Order
The legal process for fighting a false restraining order is as follows:
- Filing a motion. The process begins by filing a motion to dismiss or contest the restraining order. Notice of this filing must be served on the petitioner.
- Scheduling a hearing. The hearing provides an opportunity to prove that the restraining order should not have been issued. The respondent has the burden of proof to establish this. An attorney can best determine what evidence will meet the burden of proof and assist in gathering that evidence.
- Deciding the case. If the restraining order is dismissed, the respondent gets back their gun rights and has the restraining order removed from their record. If the restraining order is upheld, the respondent will not retain their gun rights and may lose other freedoms.
Key Considerations for Clients
It is important to take timely action in false restraining order cases. In particular, the respondent has 45 days to file an appeal of a restraining order. If that time elapses, a motion to have the restraining order dismissed will be needed. In addition, law enforcement only retains forfeited guns for a short amount of time before they are destroyed.
It is also important to comply with the restraining order unless and until the court dismisses it. The respondent can face legal consequences for violating a restraining order even if it is being fought in court. If the petitioner contacts the respondent, the respondent should keep detailed records and documentation of all interactions.
How an Attorney Can Help Fight a False Restraining Order
The defendant should not attempt to fight the false restraining order on their own. An attorney can effectively help fight a false restraining order in a number of ways, increasing their chance of getting the order dismissed.
Initial Consultation and Case Evaluation
During the initial consultation and case evaluation, the attorney will assess the details and merits of the case. They will then advise on potential legal strategies and outcomes. Legal strategies may include discrediting the petitioner, or presenting evidence that proves the allegations are inaccurate.
Investigation and Evidence Gathering
The attorney will identify and collect evidence needed to refute false allegations. This may involve interviewing witnesses and gathering supporting documents. Witnesses may include those who witnessed the event that led to the restraining order or who can challenge the petitioner’s credibility.
Preparation of Legal Documentation
To fight a false restraining order, the respondent must draft and file a motion to dismiss or modify the order. An experienced attorney is in the best position to prepare and file this motion. They will also prepare affidavits and legal briefs for appealing the restraining order, if an appeal is possible.
Representation in Court
One of the most important ways an attorney can help fight a false restraining order is by representing their client in court. The attorney has knowledge of the law and court procedures that allows them to present a strong defense during hearings. The attorney also knows how to cross-examine the petitioner and their witnesses. The attorney will argue for the dismissal of the restraining order based on a lack of evidence, the petitioner’s lack of credibility, and/or other factors.
Post-Hearing Assistance
After the restraining order is dismissed, the attorney can assist in addressing any ongoing legal issues. This may include having the respondent’s gun rights restored and firearms returned. The attorney can also advise on steps to clear the respondent’s record and restore their reputation.
FAQs
The first thing you should do is contact an attorney, who may be able to prevent a FRO from being issued. It is important to follow the rules of the restraining order immediately and going forward until it is dismissed.
A TRO will not be dismissed before the court hearing unless the petitioner files to dismiss it. A court hearing is required to have an FRO dismissed.
Evidence is needed to show that the allegations leading to the restraining order are false. This could include witnesses to the incident leading to the restraining order, character witnesses for the respondent, and/or witnesses that discredit the petitioner. Documentation showing false allegations may also be used. For example, police reports showing that the petitioner was to blame for an incident may be used.
The process of contesting a restraining order varies in duration and is largely based on when a hearing can be scheduled. The courts aim to hear restraining order cases within a reasonable amount of time. For example, an FRO hearing takes place usually within ten days of a TRO.
You have the right to be represented by an attorney. You also have the right to present evidence and arguments against the restraining order. However, it is important to follow all court rules while doing so. This is why having an attorney is so important. The attorney understands court rules and procedure and knows the law to best refute restraining orders.
No, you should not contact the petitioner during this process. Even if you have filed to have a restraining order dismissed, you can be arrested for violating the restraining order as long as it is in effect. If the petitioner contacts you, make sure you keep detailed records of the interactions.
If the court upholds the restraining order, the respondent will have a restraining order against them indefinitely. They will not be allowed to own or possess firearms, and they lose the freedom to frequent places the petitioner goes. A restraining order can also require them to move if they shared a residence with the petitioner prior to the restraining order being issued.
An attorney can help by filing a motion to have the restraining order dismissed. They can also help gather evidence and witnesses to back your claims. The attorney will then present this evidence and arguments in court on your behalf. The attorney can also advise on the consequences of having a restraining order, and assist in reversing those consequences if the restraining order is dismissed.
A restraining order is a civil order, so it is not on your criminal record. However, if you violate the restraining order, that violation will be on your criminal record. Additionally, restraining orders are still a matter of public record, and anyone who knows where to look will be able to see it. This can affect employment and housing.
Having a restraining order on your record has long-term consequences. Those with a restraining order on their record cannot own or possess firearms for as long as the restraining order is in effect. You must also be careful to abide by the rules of the restraining order for as long as it remains in effect or risk criminal charges.
Resources and Support for Affected Individuals
Relevant Legal Statutes and Regulations
- Section 2C:25-19 details the grounds for domestic violence restraining orders.
- Section 2C:25-26 details what may be ordered in a domestic violence TRO.
- Section 2C:25-28 gives further details of TROs.
- Section 2C:25-29 gives further details of FROs.
- Section 2C:25-30 gives details as to the consequences for violating a TRO or FRO.
Support Groups and Counseling Services
- Centurion Ministries: This nonprofit organization offers support for those wrongfully accused or convicted of domestic violence and restraining orders.
- Grouport Therapy: This therapy provider has online support groups for those with PTSD from being wrongfully accused.
- Innocence Project: This nonprofit organization offers supportive services for those wrongfully accused or convicted of domestic violence or restraining order violations.
- Support for the Accused on Reddit: An online support group for those wrongfully accused of any crime.
Contact Rosenblum Law Today
As you can see, it is crucial to have legal representation when fighting false restraining orders. One needs an attorney experienced in fighting restraining orders because they will have a knowledge of the law and court procedures vital to winning the case.
Rosenblum Law attorneys are experienced in fighting against false restraining orders in New Jersey. Navigating the legal challenges and protecting your rights requires the hand of one of our experienced attorneys. Contact us today to schedule your free consultation and case evaluation.
Last updated: Jul 22, 2024
