Domestic Violence FRO Duration: Should Final Restraining Orders Have Expiration Dates?

As we all know, the New Jersey Prevention of Domestic Violence Act (PDVA)1 provides for the issuance of a final restraining order (FRO) to protect a victim of domestic violence upon the finding that one of the predicate acts occurred, and that the issuance of the FRO is necessary to protect the victim.2 There is no automatic termination of the FRO. In order for the FRO to be vacated, it is necessary for the individual against whom it has been issued to file an application in the New Jersey Superior Court in accordance with the provisions of the N.J.S.A. 2C:25-29(d), which provides that the court may, upon good cause shown, dissolve or modify any FRO, upon application to the Superior Court, Chancery Division, Family Part, but only if the judge who dissolves or modifies the order is the same judge who entered it, or has available a complete record of the hearing or hearings on which the FRO was based.3

In addition to the requirements of N.J.S.A. 2C:25-29(d), the applicant must satisfy the requirements of Carfagno v. Carfagno.4 In Carfagno, the Honorable Thomas H. Dilts, JSC (Ret) provided a non-exhaustive list of factors the court should consider when determining whether the moving party has shown ‘good cause’ sufficient to warrant a dismissal of the FRO.5

There is no question that the PDVA was intended to provide victims of domestic violence the maximum protection from abuse the law can provide.6 When a party moves to vacate an FRO, the court is required to “carefully consider the particular facts and circumstances of the case within the context of the intent of the legislature to protect the victims.”7 Therefore, the “lynchpin in any motion addressed to the dismissal of a Final Restraining Order should be whether there have been substantial changed circumstances since its entry that constitute good cause for consideration of dismissal.”8 As such, it is axiomatic that the previous history of domestic violence between the parties is fully explored and considered, to understand the totality of the circumstances of the relationship and to fully evaluate the reasonableness of the victim’s continued fear of the perpetrator.9 This may even include exploration of incidents that were not testified to at the time of the final hearing.10 Therefore, under New Jersey law, the protection of the victim is the primary objective, as it should be. To fulfill its obligation, the court must painfully scrutinize the record and carefully consider the factors set forth under the PDVA and Carfagno before removing the protections afforded by the FRO.11 All of this obviously represents a significant hurdle for a person seeking to vacate an FRO.

Clearly, the issue of domestic violence is a very serious concern. It cannot be taken lightly. The question becomes, however, in the face of such a daunting hurdle, is an indefinite FRO against an individual for what may be one or limited acts reasonable?

From 2011 to 2015, the records of the Administrative Offices of the Courts (AOC) reflect that there have been 168,439 new domestic violence complaints filed, and 30,379 FROs entered.12 It is worth noting that most domestic violence complaints do not result in the entry of an FRO. Many are dismissed by the plaintiff or the court. About 18 percent of complaints filed result in an FRO. It is expected that with the addition of cyber harassment13 and criminal coercion to the list of criminal offenses that may constitute domestic violence, the number of domestic violence complaints will increase as the years go on.

Notwithstanding the laudable goals of the PDVA, it must be recognized that New Jersey runs contrary to the clear majority of states with regard to the permanency of FROs.14 As one can see from the American Bar Association compilation chart, most states provide for a restraining order to have some limited duration, which can be extended upon the application of the protected party.15 Certainly, there are some states where the court can enter an indefinite restraining order, but it is usually up to the judge, based upon the facts of the case. Some states have certain criteria for permanency.16 New Jersey’s PDVA does not appear to permit the trial judge to put a termination date on an FRO. Therefore, unlike in most states, unless a person against whom an FRO has been entered in New Jersey can meet the stringent requirements of the statute and Carfagno, he or she will always be under the threat of possible criminal conviction for violating the terms of the FRO, as well as numerous other negative ramifications, due to having an FRO entered against him or her.

The original rational for the permanent order was that long-term relationships, such as marriage and couples with children in common, lead to long-term threats on the well-being of the victim. The subsequent addition of stalking to the list of predicate offenses considers perpetrators with an irrational attraction to the victim that is not likely to change. Domestic violence victim advocates can cite cases from other states in which the expiration of an order has led to the subsequent assault on a victim. Therefore, it cannot be denied that the burden to the victim to request an extension must be weighed against the potential impact on the defendant.

There was a recent article in The Economist17 indicating that lawmakers in Russia were moving to decriminalize domestic violence. The article suggests that Vladimir Putin’s family values are impacting lawmakers. The article notes that the Duma (Parliament) voted in the last week of January of this year to decriminalize domestic violence against family members unless it was a repeat offense or caused serious medical damage. No one is suggesting that New Jersey take such drastic steps (or anything close to it). One could argue that such action based upon Putin’s ‘family values’ (which one could argue are founded in paternalism and misogyny) support opposition to a change in New Jersey’s approach. The decriminalization of domestic violence in Russian families could be viewed as a license to ensure the primacy of the male. However, a primary argument for not changing the durational nature of New Jersey’s FROs is that such an approach would require a victim (in some cases) to be subjected to the emotional abuse of the defendant all over again.

There are various options, however, available to the Legislature regarding this issue. Yes, the most extreme would be to provide that FROs would be entered for a fixed period. If that is too extreme, however, there could be a presumption that an FRO would terminate after a certain period, unless the victim requests that it be extended. Alternatively, the duration of an FRO could be an issue for the trial court to decide at the conclusion of any domestic violence hearing where an FRO is to be entered. The Legislature could include the factors for a trial court to consider when addressing the duration of the FRO. Perhaps there are even less onerous approaches to across-the-board durational limits. Perhaps FROs based on harassment (that are the most susceptible to abuse) could be made self-expiring after 12 month. Further, perhaps the standards for dissolution of an FRO could be made less stringent, basing it more on the objective standard of risk rather than the subjective fear of the victim, and giving significant consideration to the lapse of time since the entry of the FRO and the absence of any violations at the time the dissolution of the restraining order is sought.

One way or the other, there should be some mechanism to balance the need to protect victims of domestic violence against the onerous impact against the abuser resulting from the issuance of an indefinite final restraining order. Therefore, this author suggests the issue of the permanency of final restraining orders be investigated and reconsidered.

The author wishes to thank Harry T. Cassidy, retired assistant director of the AOC, for his assistance and input with this column as well as Alona Magidova, with the Williams Law Group.

Endnotes

[1].           N.J.S.A. 2C:25-17 et seq.

2. Silver v. Silver 387 N.J. Super. 112(App. Div. 2006).
3. In cases where the motion judge did not enter the final restraining order, the “complete record” requirements of the statute include, at a minimal, all pleadings and orders, the court file, and a complete transcript of the final restraining order hearing. Without the ability to review the transcript, the motion judge is unable to properly evaluate the application for dismissal. Kanaszka v. Kunen, 313 N.J. Super. 600, 606 (App. Div. 1998) (Emphasis added). Moreover, in light of this significant volume of cases handled by the family part judges, even if the motion was heard by [the same judge entering the FRO], it would still be challenging for the judge to make an appropriate determination without the benefit of a transcript, if a significant time has passed since the FRO hearing. Id. A review of the underlying transcript enables the motion judge to “fully understand the totality of the circumstances and dynamics of the relationship and the application.” Id. at 606-607. Without same, “confusion and difficulty” can arise. Id. at 606.
4. 288 N.J. Super. 424 (Chancery Div. 1995).
5. Judge Dilts provided for eleven factors for an application to vacate an FRO as follows:

• Whether the victim consented to lift the restraining order;
• Whether the victim fears the defendants;
• The nature of the relationship between the parties;
• The number of times that the defendant has been convicted of contempt for violating the order;
• Whether the defendant has continuing involvement with drug or alcohol abuse;
• Whether defendant has been involved in other violent acts with other persons;
• Whether the defendant has engaged in counseling;
• The age and health of the defendant;
• Whether the victim is acting in good faith when opposing the defendant’s request;
• Whether another jurisdiction has entered a restraining order protecting the victim from the defendant;
• Other factors deemed relevant by the court.

6. N.J.S.A. 2C:25-18.
7. Kanaszka, Supra, 313N.J. Super. at 605.
8. Id. at 609.
9. N.J.S.A. 2C:25-29a(1).

[1]0.         Kanaszka at 607.

[1]1.       A.B. v. L.M., 289 N.J. Super. 125 (App. Div. 1996); See Torres v. Lancellotti, 257 N.J. Super. 126, 131 (Ch. Div. 1992) and Carfagno v. Carfagno, 288 N.J. Super, 424 (Ch. Div. 1995).