Vacating/Removing a Domestic Violence Restraining Order
October is Domestic Violence Awareness Month. While a great deal of attention is focused on victims of domestic violence (and rightly so), there is very little attention upon the process for vacating a restraining order in New Jersey after parties have moved on with their lives in many ways and there is no longer a threat of violence.
Domestic violence final restraining orders entered in New Jersey are permanent. While in most other states, they are reviewable, renewable, or self-terminating after a certain period of time, in New Jersey they can only be dismissed or terminated upon an application to the court. The defendant (person against whom the restraining order was entered) must make an application (called a motion) to the Family Court seeking to have the restraining order vacated. These applications are commonly known now as requests for a Carfagno hearing, named after the 1995 case in which the New Jersey Supreme Court set forth the factors to be considered in determining whether such restraining orders should be vacated. There is also a statutory basis for such applications at N.J.S.A. 2C:25-29(d).
In Carfagno v. Carfagno, 288 N.J. Super., 424 (1995) the Supreme Court of New Jersey stated,
Generally, a court may dissolve an injunction where there is “a change of circumstances [whereby] the continued enforcement of the injunctive process would be inequitable, oppressive, or unjust, or in contravention of the policy of the law." Johnson & Johnson v. Weissbard, 11 N.J. 552,555 (1953). Id. at 433-434.
The Supreme Court’s decision in Carfagno established the factors that the trial court must consider when deciding whether good cause exists to dissolve the final restraints entered pursuant to the Act for the Prevention of Domestic Violence.
(1) whether the victim consented to lift the restraining order;
(2) whether the victim fears the defendant;
(3) the nature of the relationship between the parties today;
(4) the number of times that the defendant has been convicted of contempt for violating the order;
(5) whether the defendant has a continuing involvement with drug or alcohol abuse;
(6) whether the defendant has been involved in other violent acts with other persons;
(7) whether the defendant has engaged in counseling;
(8) the age and health of the defendant;
(9) whether the victim is acting in good faith when opposing the defendant's request;
(10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and
(11) any other factors deemed relevant by the court.
If the defendant makes a basic showing in the application that there is a basis for the hearing, the court will grant a hearing at which the parties will have the right to testify, present other witnesses, cross examine witnesses, and present appropriate documentary evidence. This is the Carfagno hearing.
While most of the factors set forth in Carfagno are relatively straightforward and fact sensitive, it is likely that the judge is going to focus most heavily on factor (2), “whether the victim fears the defendant." The judge, in the Carfagno case, spent significant time discussing the issue of whether to test the victim’s alleged fear of the defendant objectively or subjectively. In concluding that an objective standard must be used, theCarfagno court reasoned as follows:
The Legislature provided that final restraining orders may be dissolved upon good cause shown. N.J.S.A. 2C:25-29(d). The Legislature did not state that permission of the victim is required before the court can dissolve a final restraining order. Essentially, if the court were to consider only subjective fear, it would be merely determining whether the victim consented to dissolving the final restraining order without considering other relevant information. This is not what the Legislature intended because this interpretation would render the “good cause shown" language inoperative. Thus, the courts must consider objective fear--not subjective fear. Id. at 437.
An objective standard requires the court to determine “would a reasonable victim similarly situated have fear of the defendant under the circumstances"Id. at 438.
I recently was successful in having two domestic violence restraining orders vacated. In one case the victim decided to consent and allow the restraining order to be vacated and the domestic violence case to be dismissed just as we were about to start the hearing. That order had been in effect for over 10 years. Both parties had moved on with their lives and remarried but continued to have significant disputes over parenting issues. Unfortunately, the child had become the battle ground and the restraining order a weapon.
In the other recent case I handled, the court granted my client a Carfagno hearing. The main issue of contention between these parties was custody and parenting time with their child. There had been multiple motions filed by both parties, a full trial related to custody and parenting time issues, both had reported the other party to DYFS on at least two or three occasions, and five different judges had handled different aspects of their case over the five years since the restraining order was entered. The parties each testified at the Carfagno hearing. Each also called witnesses on his/her behalf. After the hearing, the judge rendered a lengthy opinion, finding that the “victim" did not sufficiently establish an objective fear of the defendant.
It is important to remember, however, that this process does not completely erase the finding of domestic violence that was originally made by the court. This process simply allows the final restraining order to be lifted or vacated so that it does not exist anymore. The finding of domestic violence remains a part of the court’s record, and the defendant’s name will remain on the National Domestic Violence Registry. However, it does remove the threat that the defendant might be arrested at any time due to the plaintiff advising the police that the other party has violated a domestic violence restraining order.