Domestic violence is a sensitive issue to which many potential victims do not know how to properly respond. From the process of obtain restraining orders to filing a criminal complaint, there are various options available for New Jersey residents who feel they may be victims of domestic violence.
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Guest speakers: Family Lawyer – Rosanne DeTorres. Matrimonial law attorney Rosanne DeTorres practices family law with the New Jersey law firm of DeTorres & DeGeorge, LLC. An accomplished appellate attorney with experience in commercial, business, and real estate transactions, Rosanne is trained both as a family mediator and a collaborative law attorney. She is a member of the Executive Committee of the Family Law section of the New Jersey State Bar Association and the Hunterdon County Bar Association. Learn more at www.danddfamilylaw.com.
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How does a person know if they qualify for getting a domestic violence restraining order?
The best way for a person to decide that is either one of two ways. One is to come in to speak to us, let us review the history of your situation and the facts, and we can evaluate that.The other way is to seek counselling with a local domestic violence agency. They offer counselling services and educational programs for people that may believe they are victims of domestic violence so that they can understand what the cycle of violence is and whether what they’re experiencing in their home or in their relationship rises to that level.
What does a person need to do to actually get a restraining order if they do feel unsafe and they have gone through this process you just mentioned?
There are two ways you can get a restraining order in New Jersey. One is to actually go to the Superior Court in the county in which you live and go to the Family Court Intake Office or the Clerk’s Office and apply for one. You’ll fill out some forms and an affidavit. You’ll meet with court personnel and they will take you before a judge to decide if what you’ve alleged qualifies.
The other way is through your local police department. Oftentimes, acts of domestic violence occur when the courts are closed on the weekends or in the evenings. You can actually call 911 or you can go to your local police department office and apply for a restraining order through them.
If somebody is planning to get a restraining order against their spouse, do they have the right to file a criminal complaint as well?
Yes, they do. If there is any crime that was committed during the acts of domestic violence, then they absolutely have the right to file a criminal complaint or swear out an affidavit asking that criminal charges be filed. It’s not up to the citizen; it’s up to the state of New Jersey to determine whether to actually charge someone with a crime.
The other thing that can happen is, in the course of the police involvement in the event, if police are called to the scene and witness injuries to the alleged victim, they are obligated to swear out a criminal complaint.
People might be reluctant to tell everything about their situation with their spouse. What do they actually have to put in their complaint and affidavit to get a restraining order against their spouse or ex-spouse?
They have to put in a couple of things. They have to substantiate that something happened on a specific day that is an act of domestic violence and there’s a number of different things that qualify, including assault, battery, harassment, vandalism of your personal property, stalking, and making threats. So you have to allege one of these events occurred. The best way to substantiate an act of domestic violence is also to allege that there’s a history of violence in your home. We use domestic violence as a catchall phrase, but it doesn’t always involve what most people think of as violence. It doesn’t have to involve hitting or inappropriate touching. It can be following. It can be stalking. It can be unwanted communicating at inconvenient hours repetitively. It can be threats. It can be inappropriate touching and hitting. It can be scaring you to death. It can be running up to you with a closed fist and coming real close to your nose, but not actually touching you. So you want to allege that there is something that happened on the event—we call that the predicate act—and that there’s a history of this type of behavior. That is the best scenario for you to succeed in getting a restraining order.
What can they expect to occur at the final hearing in order to get a final restraining order?
At a final hearing you, as a victim, have to testify. You have to bring yourself to court and speak and answer questions about what happened, why you’re afraid, and why you’re seeking protection from the court. Most of the time but not always, the alleged abuser or the defendant does appear and they’re also permitted to testify and defend themselves against the allegations. If they are present and testify, your attorney can cross-examine them and you will also be cross-examined by their attorney. Then at the conclusion of the hearing, the judge decides, by preponderance of the evidence you’ve substantiated, whether you have experienced an act of domestic violence and whether you need the protection of a final restraining order to prevent further future acts of harm.