How Will My Restraining Order Case Proceed During Covid?
We are coming up on two years now since the start of the COVID 19 pandemic in New Jersey and throughout the United States. This has impacted every aspect of our lives including our court systems and the courts have now found new ways of operating during this difficult time. In short, you can still file a restraining order in Family Court and have a hearing for a Judge to determine whether or not a final restraining order should be issued. However, a lot of this may be handled remotely now via video conferencing such as Zoom video or Microsoft Teams as opposed to in person in the courthouse. Let’s look at how things were done before the pandemic and how things have now changed in the way the courts are handling these matters.
Filing a Temporary Restraining Order
Some things are relatively constant in terms of a victim’s ability to file a temporary restraining order (TRO) during COVID. They can still file one anytime. The ways to file for a restraining order remain the same: At the police department or at the County courthouse. However, if the county courthouse is closed because of a COVID outbreak, the victim must try to reach the court by phone and see if they can apply in that manner as opposed to in person. New Jersey expanded the options for victims of domestic violence to allow for more access to restraining orders when necessary by allowing for telephone filing of TROs. Once the restraining order is issued, the defendant will be served and there will be a court date listed on the restraining order. In the vast majority of cases, this first court date will be on video or conference call.
A TRO has been issued: Now What
Once the restraining order is issued, the court will typically list the first court date within 10 days. Before COVID, this court date would always be in person. Now, the courts are handling most of these conferences and hearings via video conferencing or conference calls. For example, Essex County is handling all first appearances by conference call where they advise the defendant of the consequences of a final restraining order and ask the Plaintiff how they want to proceed. In most counties, however, such as Bergen County, Morris County, Hudson County, the first appearance is being conducted via video conferencing on platforms such as Zoom video or Microsoft Teams. Essentially, the plaintiff has 3 options:
- Dismiss the Restraining Order – The Plaintiff must speak to the domestic violence counselors and have their rights explained to them. The court must ensure that they are only dismissing the restraining order freely and voluntarily and that no one is forcing, threatening, or pressuring them to dismiss the order. Only then will a Judge sign off on the dismissal and the case will be closed.
- Postpone the Case to get an attorney or to discuss a potential settlement. Both parties can hire an attorney if they wish or represent themselves. There are no public defenders available in these cases because the cases are civil, not criminal. A settlement agreement known as civil restraints can sometimes be entered in lieu of the restraining order and then the restraining order is dismissed.
- Proceed to a Final Restraining Order (FRO) hearing – If the plaintiff wants to move forward, the case will be scheduled for a final restraining order hearing (trial), unless in the rare case where the defendant will stipulate and agree to the entry of a final restraining order. Otherwise, a trial will be held. The trial will not be held on the first date and will usually be rescheduled for a later date. With COVID delays, the courts have older restraining orders backed up for many months. Your final hearing may not be held for a month or two depending on the County and the availability of Judges.
Proceeding to a Final Restraining Order Trial – Where will this be held?
If the case is not dismissed or resolved by way of a civil restraints settlement agreement, then the case will be scheduled for trial. Before Coronavirus, this trial would have been in person. Now, it depends. Some of these trials are being held remotely on video while some of these trials are still being conducted in person at the courthouse. It depends on the Judge’s preference and the County and whether or not the court is even open to the public based on the COVID numbers in the area at the time.
If the trial will be held on video, the Court will provide you with an evidence dropbox to upload your evidence before the date of the trial. Evidence can include the following:
- text messages
- police reports
- hospital records
- pictures of injuries or damage to property
Once your evidence is uploaded, you will be able to access it and the Judge and the opposing side will be able to access it during the hearing. If your hearing is being held in person, then you can bring this evidence with you to court. However, make sure everything is printed out and not just accessible on your phone as the Court will like copies of the evidence for their file.
What happens at the trial?
The Plaintiff goes first and has the burden of proof. Because this is a civil case, the burden of proof is “by a preponderance of the evidence” which means more likely than not or a 50% threshold. The Plaintiff will testify and admit their evidence and then the defendant (or their lawyer) will have an opportunity to cross examine them. Then, the defendant can testify (if they choose) and admit any evidence they have. They don’t have to testify or admit any evidence as the burden remains on the plaintiff to establish all of the elements required to prove a final restraining order is necessary. These three elements are:
- Predicate act of domestic violence was committed by the plaintiff against the defendant
- Prior history of domestic violence between the parties
- Plaintiff is reasonably in fear for their safety and need the protection that a restraining order provides
If all three elements are met, a final restraining order will be issued. The defendant will be prohibited from having any contact with the plaintiff in person, electronically, or through a third party. If they violate the order, they will be arrested and charged criminally with contempt. On a conviction for a 2nd contempt violation for violating a restraining order, the defendant must serve mandatory time in the county jail. In addition, if the final restraining order is issued, the defendant will be fingerprinted and placed into a NJ database for domestic violence offenders. They will be prohibited from owning or possessing firearms. It can also impact things like employment, professional licenses, and traveling abroad.
If the restraining order is dismissed, then the protections are removed. There is nothing to expunge. If a new act of domestic violence occurs, a plaintiff can always file a new temporary restraining order (TRO).
Find Experienced Legal Representation for Your Case
If you are involved in a restraining order matter in the midst of Coronavirus, you can talk to one of our knowledgeable New Jersey attorneys anytime. Call (908)-336-5008 to discuss your case in a free consultation or go ahead with contacting us online to learn more about the process, and how our experienced team can offer guidance and skilled representation on the road ahead.