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A restraining order is a civil court order that prevents the defendant from contacting the plaintiff, which in New Jersey is also called an order of protection. There are also additional consequences for the defendant if a restraining order is issued, such as fines and gun ownership restrictions.
In order for a plaintiff to be granted a restraining order against the defendant, there is a standard of proof that must be met. Whether you are the plaintiff or defendant in a restraining order case, it is important to understand the standard of proof, or evidence needed to grant the restraining order.
An experienced attorney at Rosenblum Law can determine if a restraining order case will meet the standard of proof in NJ. This article briefly describes what the standard of proof is, and how an attorney can help obtain or fight a restraining order.
Overview of Restraining Orders in New Jersey
What is a Restraining Order?
A restraining order is a civil court order that prevents the defendant, or person issued the order, from contacting the plaintiff and requires them to stay a certain distance away from the defendant. They may also be prohibited from entering certain properties where the plaintiff resides, works, or frequents. Because it is a civil order, it doesn’t appear on the defendant’s criminal record.
Different Types of Restraining Orders
There are two types of restraining orders: temporary and final:
- A temporary restraining order (TRO) is often obtained automatically, but it only lasts until the hearing for a final restraining order, which typically happens within 10 days.
- A final restraining order provides long-term, often permanent protection for the plaintiff. To get a final restraining order (FRO), the plaintiff must meet the appropriate standard of proof. Although FROs are often permanent, they can be lifted if the plaintiff or defendant files a motion with the court and proves that the FRO order is no longer necessary.
The Standard of Proof for Restraining Orders
The standard of proof is the level of evidence required for the court or jury to grant whatever the plaintiff is seeking. It is the plaintiff’s job to meet the standard of proof.
In civil matters such as restraining orders, the standard of proof is called a “preponderance of the evidence.” This means that the evidence must show that it is more likely than not that the plaintiff’s claims are true.
There is a variety of types of evidence used to meet the standard of proof in TRO and FRO hearings.
- Direct Evidence: This could include pictures of injuries caused by the defendant, police reports for domestic violence, or similar evidence.
- Circumstantial Evidence: Circumstantial evidence is indirect evidence based on circumstances that allow the judge to infer specific facts, such as phone records
- Witness Testimony: Witnesses may include friends, family members, or neighbors; police officers who arrived on the scene of a domestic dispute; or people who heard the defendant threaten the plaintiff.
- Documents and Electronic Evidence: This could include threatening text messages from the defendant or other documentation of threats or violence.
The judge must examine all of this evidence to determine if the plaintiff has met the standard of proof. A restraining order case based purely on circumstantial evidence is not likely to be issued, but circumstantial evidence can supplement other types of evidence.
Legal Implications of the Standard of Proof: The Outcome of Restraining Order Cases
Meeting or not meeting the standard of proof has effects on both parties. If the plaintiff does not meet the standard of proof, the restraining order will not be issued. This could lead to harm to the plaintiff if the order was truly needed.
If the plaintiff meets the standard of proof, a final restraining order will be issued, and the plaintiff will gain legal protection from the defendant. At the same time, the restraining order has consequences for the defendant in addition to prohibiting contact with the plaintiff. In New Jersey, these consequences include:
- The defendant must pay a fine of up to $500.
- If the case involves domestic violence, the defendant is put into the domestic violence registry.
- The defendant is prohibited from owning or possessing firearms.
The defendant’s freedom may also be limited, as certain locations may be placed off limits to them by the restraining order.
The Role of an Attorney in Restraining Order Cases
An attorney can assist the plaintiff or the defendant in a restraining order case.
For the plaintiff, the attorney can ensure that the standard of proof is met by presenting compelling arguments and evidence in court. An attorney will help the plaintiff gather evidence and witnesses to develop a legal strategy that fights for the best possible outcome for their client.
For the defendant, the attorney can argue that the plaintiff failed to meet the standard of proof required for an FRO. The attorney can also provide guidance as to the consequences of the restraining order, and how to follow it to avoid further consequences. If the defendant feels the accusations being made are false, an attorney will be particularly helpful in ensuring their defense strategy is successful.
FAQs
Intent to harass is difficult to prove, but you can prove harassment with phone records and text messages. You can also prove harassment by presenting evidence of stalking and public harassment. Witnesses can be key in harassment cases.
A preponderance of evidence is the standard of proof in restraining order cases. It means that the plaintiff must prove that it is more likely than not that their claims are true.
How hard it is to get a restraining order depends on how much evidence the plaintiff has to prove the standard of proof. To get a final restraining order in New Jersey, the plaintiff must prove that they are being harassed or threatened by the defendant. This proof could be evidence of ongoing domestic violence, police reports, photographic evidence, or documentation of threats or harassment. If one has enough evidence to prove their case, the restraining order will be granted.
A violation of anything in a restraining order is considered contempt of court and can lead to an arrest and substantial fines. Prosecutors may also charge a restraining order violation as a felony, such as many violations of a domestic violence restraining order, which is a fourth degree crime punishable by up to 18 months in prison or thousands of dollars in fines.
Yes, the defendant can present evidence to counter the plaintiff’s claims. An attorney can assist in gathering such evidence and presenting it in court. When the defendant’s evidence is stronger than the plaintiff and the plaintiff does not meet the standard of proof, the restraining order will be denied.
If new evidence emerges after the initial hearing, an appeal can be filed. One must file the appeal to the restraining order within 45 days. If the 45 day period is passed, one can still file a motion to have the restraining order dismissed. If the restraining order was originally denied and new evidence comes to light, one can file a petition for a new restraining order.
No, it is not necessary to have an attorney to meet the standard of proof, but having an attorney greatly increases the odds of a favorable outcome. Attorneys have an understanding of the law that many people do not have, and this understanding allows them to gather and present evidence more effectively.
Contact a Restraining Order Lawyer from Rosenblum Law
Whether you are the plaintiff or the defendant in a restraining order case, it is important to have an attorney on your side to prove or disprove the standard of proof. Only an experienced attorney can help gather evidence to meet the standard of proof or develop legal strategies against it.
Rosenblum Law attorneys are experienced in both sides of restraining order cases, and will help you ensure your case is strategically fought. If you are involved in a restraining order case, contact us today to schedule your free consultation.
Last updated: Jul 17, 2024
