Filing a Restraining Order During COVID-19
In light of the COVID-19 pandemic, most states across the country are under strict orders from their Governors to remain inside. As part of that mandate, all non-essential businesses, organizations, and even the Courts, have been ordered to close their doors to reduce the spread of the virus. These safety measures may help control further outbreak and reduce the number of sick individuals. Unfortunately, a side effect of these measure is an increase in domestic violence occurrences. And because the courtroom doors are presently sealed from the public, many victims do not what do to.
If you or someone you know is a victim of domestic violence, they can still contact the police or visit their local police department. Law enforcement has been deemed an essential entity and therefore, are still serving the community. Therefore, if you believe you need protection, you can still contact the police for assistance. Also, if you do not feel safe using your phone inside the home, you can visit the police station to request an order of protection.
To properly file for a restraining order, it is important to be prepared. The police will need to be informed about two major components. First, the underlying predicate act of domestic violence. What occurred that caused you to feel threatened and thus, are in need of immediate protection. When speaking to the officer, you want to provide as much detail as possible and if feasible, be able to support your claims with evidence such as text messages, emails, social media posts, pictures, or videos. Second, after detailing the most recent event, you then need to articulate any history of domestic violence. You want to inform the police about any past instances, even if you did not contact the police or sought an order of protection. Similar to the underlying act, you want to provide as much detail as possible.
After reporting what occurred to the police, the officer assisting you will contact a judge to review the matter. If the judge believes an order of protection is warranted, he or she will issue a temporary restraining order. As part of the order, the accused will be removed from the home and forbidden from contacting you in any matter. Moreover, the accused cannot have any third party communicate with you on his or her behalf. On top of the no-contact provisions, the judge is also permitted to enter support orders and parenting time restrictions. For example, the judge can order the defendant to pay the mortgage on the house or suspend parenting time until the matter is resolved.
Removed From Your Home
If you are the person being accused, the COVID-19 outbreak will unfortunately pose a greater hardship upon you than normal. Under more common circumstances, despite being removed from your home and being mandated to stay away from your children, the momentary restraints are tolerable. Following the issuance of the temporary restraining order, the parties are expected to appear in court within 10-days for a final hearing. At the hearing, each side may present their case and based upon the evidence received, the court will determine whether a final restraining order is warranted. Thus, if the restraining order has no merit, the reviewing judge will dismiss the case and you will be able to return home. The temporary removal is burdensome but bearable.
However, during the current health crisis, the courts are closed and therefore, the matter cannot be litigated quickly. As such, many defendants are forced to find long-term alternative housing. Nevertheless, this can be very difficult for many citizens. Not every person has family or friends in the area that can assist them. Moreover, due to the pandemic, you cannot board an airplane to fly out-of-state if you have family across the country. Also, many individuals cannot afford to pay for alternative housing or even worse, many people have been laid-off due the virus. Thus, there are not in a position financially to spend money on a hotel. Lastly, the law absolutely prohibits “in-house” restraining orders. As a result, the court cannot fashion an order where the plaintiff occupies one section of the house and the defendant resides in the other portion. Therefore, if a restraining order is issued against a person, he or she may become homeless.
Many couples share children together and sadly, exposed children suffer greatly if they witness acts of domestic violence. In fact, the Prevention of Domestic Violence Act takes note that there is a positive correlation between spousal abuse and child abuse. The Act provides that many children, even if they are not abused, suffer a deep and lasting impact from seeing domestic violence. In light of this finding, most temporary restraining orders suspend parenting time. Therefore, most defendants are prohibited from seeing or speaking to their children during the course of the case.
Similar to being removed from the home, the restriction is expected to be brief. Again, under normal circumstances, the parties are required to be in court within 10-days. Moreover, when the parties appear in court after the temporary order is entered, the parties can address the issue and, in many instances, a parenting time plan can be arranged. Especially if the reported acts do not concern the children. For example, if the order was entered due to harassing text messages. It is very unlikely that the children viewed the messages and thus, there is no danger in allowing the defendant-parent from spending time with his or her children. Unfortunately, the current set of circumstances are irregular and the courts are closed.
In response to the epidemic, our courts have been holding video conferences, which allow judges, court staff, and litigants to maintain their distance and address the court remotely. Through video conferencing, both housing and parenting time can be addressed. Even though the parties are not inside the court and physically before the judge, each side can present reasons why the temporary order should be modified.
With respect to parenting time, video conferencing is a great solution to amend the temporary restraining order so a parent can see and interact with their child. However, with regard to housing, the use of video technology does not solve the problem. The Domestic Violence Act does not authorize in-house restraining orders. Consequently, the judge is forbidden from allowing the defendant back into the home. The only potential solution to this problem is when the defendant appears in court virtually, he or she must try to persuade the judge to have the plaintiff leave the home. It may be possible for the plaintiff to reside with family and friends and therefore, the defendant can reenter his or her residence.
Trial – The Final Hearing
Despite the benefits of technology, it is still no substitute for in person communication. The judge cannot truly see the litigants and thus, cannot properly judge their credibility. Plus, if a party wishes to admit any exhibits to support their case, they would be unable to do so unless they forwarded the documents to the court and their adversary beforehand. Likewise, if they desire to confront a witness with a document, picture, or video, they will unlikely be able to do so by way of video conference. Therefore, virtual courtrooms are an accepted fix for the time being but it cannot replace in-person courtroom proceedings. Accordingly, is it very unfortunate and unfair for defendants who need to wait until the crisis is over before they can adequately be heard. Nevertheless, moving forward with case and conducting a video trial can be very costly. If a final restraining order is issued, it is a permanent order that remains in effect forever. Thus, it is not worth the risk of moving forward with a virtual trial.
Appealing a Judge’s Finding
If a person is denied a temporary restraining order, he or she may request an appeal. If the order is denied by a municipal court judge, the case be reviewed by a superior court judge. Also, the individual can seek to refile the complaint to clarify certain facts or add additional claims to their petition. Conversely, if the temporary restraining order is granted, the defendant is permitted to request an immediate hearing to review the order and possibly modify or dismiss the complaint.
If the temporary order is plainly insufficient on its face, seeking an appeal may be an excellent way to dismiss the matter so you can return home and see your children. Nevertheless, please keep in mind, the order will not be dismissed simply because you say the accusations are untrue. That’s what trials are for, to search for the truth. In order to dismiss the temporary restraining order prior to the hearing, the temporary order must be defective in some way.
If you or someone you know needs assistance with a domestic violence restraining order in New Jersey, we are here to help. Contact our experienced attorneys now for immediate assistance and a free initial consultation.