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Fundamentals of Due Process in Restraining Order Cases

Published: August 31, 2023

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Breaking Down Due Process Rights in a New Jersey Restraining Order Matter

Due Process Restraining Orders NJMeaning of Due Process in Legal Terms

The Due Process clause in the Fifth and Fourteenth Amendments affirms everyone’s right to a fair and legal process when dealing with the federal and state governments. The Bill of Rights forbids governments to deprive anyone of “life, liberty, and property without due process of law.” That means individuals must receive notification of legal procedures charging them with crimes or naming them defendants. Also, it means that legal proceedings must be fair and follow the laws. Regarding restraining orders, parties must receive notice that someone seeks a restraining order against a named defendant, and that each party can present their case and defend against accusations.

Specific Due Process Rights in a Restraining Order Case in New Jersey

Balancing a victim’s protection and a defendant’s due process rights in a restraining order case is not always easy. For example, a domestic violence victim may seek a temporary restraining order (TRO) on an emergency basis, and the accused does not have to be there. The circumstances may not allow enough time for notice to the defendant of a TRO hearing because the victim may be in danger of abuse and retaliation should the defendant receive notice before a TRO hearing.

And yet, a final restraining order (FRO) hearing is another matter. Since the defendant stands to lose rights to life, liberty, and property when a judge grants an FRO, their due process rights require that the defendant receive legal notice of the FRO hearing and an opportunity to present evidence for their defense. An FRO may restrict where a defendant may go and the property they must give up. An FRO forbids a defendant to contact the plaintiff victim and may order law enforcement to seize their guns or force them to forfeit the weapons. And should the defendant violate a restraining order, they could face jail time. The defendant’s due process rights are paramount in a restraining order proceeding.

Notification of Right to Counsel in a Restraining Order Trial

Due process includes the defendant’s right to get an attorney to represent them in a domestic violence proceeding. As such, a judge must inform the defendant that they have a right to obtain counsel and allow them time to get an attorney when they want representation. Otherwise, a judge should confirm a defendant’s understanding that they have the right to contact an attorney but decline to do so. Moreover, the judge must do so at the start of the proceedings, not after a decision and judgment.

In A.A.R. v. J.R.C., the court failed to inform the parties that they had the right to obtain counsel until after the judge found domestic violence and granted a restraining order against the defendant. At that time, the judge notified the parties of their right to counsel and the serious outcome of an FRO, such as fingerprinting and a listing on the Domestic Violence Registry. The defendant then asked for an attorney, but the judge denied the request. The Appellate Court found the lower court erred in failing to inform the defendant at the outset of their right to counsel and the consequences of a restraining order.

What rights don’t you have with a restraining order case when compared to criminal defendants in NJ?

While a defendant in a restraining order case has the right to obtain counsel, they do not have a right to have the court appoint counsel for them, as criminal defendants do, unless the defendant is facing a contempt charge. A finding of contempt could mean a jail sentence. Since defendants face incarceration, they may have the right to appointed counsel. In any event, all defendants have the right to defend themselves with evidence.

Right to Request an Adjournment to Find Legal Counsel

As mentioned, the parties must be informed of their right to request an adjournment in order to hire an attorney. This must be done at the outset of the proceedings and they must be given time to find a lawyer if they request it. In M.C.B. v. Victorian Vartanian, the defendant, accused of harassment and threats to her ex-boyfriend, received notice of the TRO a day before the FRO hearing. At the hearing, the judge did not inform the defendant about the consequences of an FRO, her right to counsel and to postpone the hearing for her to get an attorney, and her right to subpoena witnesses and provide other evidence to the hearing. The Appellate Court found these omissions constituted the minimum due process requirements.

Right to Call Witnesses and Cross-Examine

Due process also includes the defendant’s right to present defense witnesses and evidence and to confront and cross-examine plaintiff witnesses. Additionally, a judge may not deny one party their evidence based on evidentiary or court rules but allow the other party to break the rules in presenting evidence. When a judge disallows a defendant to introduce evidence supporting their defense or challenging the plaintiff’s evidence, this must be done in accordance with the law and the due process rights guaranteed to both parties.

For example, in a Superior Court case titled M.D.C. v. J.A.C., the judge deprived the defendant of fundamental due process by not advising the defendant that the court could adjourn the restraining order hearing to allow the defendant to bring a witness, by disallowing the defendant to offer exculpatory evidence, and for failing to require the plaintiff to file an amended domestic violence complaint to apprise the defendant of further allegations that arose at the hearing.

The Appellate Court determined the lower court infringed the defendant’s due process rights when the court disrupted the defendant’s cross-examination of the plaintiff and challenged the relevance of the questions. The just also violated the defendant’s due process rights by not adjourning the hearing to allow the defendant time to bring a witness and by disallowing the defendant’s exculpatory evidence of videos and photographs of the violence plaintiff committed without reason. Finally, the Appellate Court found that allowing the plaintiff to raise new claims of violence without amending the complaint and giving the defendant fair notice of such allegations was also a due process violation.

Impartial Consideration in Final Restraining Order Hearings

The defendant also has a right to a fair trial. The plaintiff does not risk losing property or liberty with a restraining order; the defendant does. The judge should be fair and treat both sides equally under the law during the legal process. Since defendants have the right to a fair process, a judge may not show bias in their rulings and behaviors during a hearing. As such, the K.D.M. v. J.D.M. reinforces due process as the right to a fair proceeding. The judge found the defendant guilty of harassment based on the plaintiff’s testimony of unwanted sexual contact by the defendant. The judge granted the restraining order against the defendant and was overhead speaking to court staff, referring to the defendant as a “dirty old man.” On appeal, the court found the trial court judge’s remarks as an appearance of bias. The defendant was, thus, deprived of due process, the least of which is an unbiased court.

Let us Protect Your Due Process Rights in a Domestic Violence Case

Without understanding the due process and the legal rights of a domestic violence defendant, including the right to an attorney, a defendant in a restraining order procedure could suffer great prejudice and lose fundamental rights guaranteed under the Constitution. Optimally, a defendant hires an experienced domestic violence lawyer to represent them at a restraining order hearing to ensure a judge hears their evidence, that they receive a fair trial by an impartial judge, and that they are afforded the opportunity to have witnesses at the hearing that may support their case.

At The Tormey Law Firm, our restraining order attorneys are fully prepared to represent your case, understanding the rules of evidence, how to skillfully cross-examine witnesses, and when to staunchly object to improprieties during a hearing. Our commitment is always to deliver the optimal results, safeguard your rights, and prevent injustice. We also handle thousands of restraining order appeals and cases involving motions to vacate restraining orders on behalf of clients throughout New Jersey, so we can examine your case and determine the best course of action, depending on whether you need to get an FRO removed or there are valid grounds to appeal your restraining order case decision. Consult an attorney on our team 24/7 by contacting us online or at (908)-336-5008 to help you with your restraining order matter.

Filed under: Domestic Violence Process, NJ Domestic Violence Law, Restraining Order Case Issues

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