Once a Final Restraining Order is granted in New Jersey, it has no expiration date and lasts indefinitely. However, under certain circumstances, you may be able to return to court to vacate (dismiss) the FRO.
The Carfagno Factors
The seminal case addressing dismissal of Final Restraining Orders is Carfagno v. Carfagno, decided in 1995. This case tells the judge deciding whether to dismiss an FRO that he must consider the follwoing factors.
Has the victim consented to lifting the restraining order?
The victim must be notified of the motion to vacate the FRO. Her voluntary consent will be extremely helpful, although the judge may still dismiss the order over her objection.
Does the victim fear the defendant?
Even if the victim claims fear, the judge should consider whether this fear is reasonable under the circumstances.
What is the nature of the parties' relationship now?
Having an ongoing relationship, such as to co-parent children, can be helpful it is a positive, healthy relationship. Likewise, if the parties have had no contact for many years, that may suggest that the victim has no reason to fear the defendant any longer.
Has the defendant been convicted of violating the FRO?
A violation of the restraining order will suggest to the judge that the defendant may have impulse control and anger management issues, particularly if the violation is recent. This will make vacating the FRO much more difficult.
Does the defendant have ongoing drug or alcohol abuse issues?
Again, this issue goes to the defendant's impulse control. A defendant may be a completely rational person while sober but may also exercise poor judgment, such as violating an FRO or engaging in violent conduct when under the influence.
Does the defendant have a history of violence?
The court will likely view an isolated violent incident differently from a history of violence.
Has the defendant engaged in counseling?
Participating in counseling, particularly if that participation was voluntary, suggests that the defendant is willing to change whatever issue within himself that led to the underlying domestic violence incident.
What are the defendant's age and health?
The court may be more willing to "forgive" an act of youthful indiscretion or poor judgment if the defendant comes back to court years later as a mature, responsible adult. Also, the court, and the victim, may be less concerned about future incidents of domestic violence if the defendant is elderly or in poor health.
Is the victim who opposes the motion to vacate acting in good faith?
The court must consider whether the victim is opposing the motion to vacate the FRO because she still fears the defendant or if there is another, bad faith reason, such as maintaining an advantage in a custody case.
Has another jurisdiction entered an FRO in favor of the victim and against the defendant?
The court may be willing to vacate a New Jersey FRO is the victim lives in another state, where she also has a restrianing order against the defendant.
Additional resources provided by the author
If you have a Final Restraining Order against you in New Jersey, you should consult an experienced New Jersey family lawyer to determine if it worthwhile to file a motion to vacate that order.
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