Can You Expunge a Restraining Order in New Jersey?

Can a Restraining Order Be Expunged in NJ?

People who have had a temporary or final restraining order entered against them often want to know whether they can eventually have it expunged from their record. In New Jersey, however, the answer is different from the expungement process used for arrests and criminal convictions.

Domestic violence restraining orders are civil matters. As a result, a temporary restraining order (TRO) or final restraining order (FRO) is not expunged in the same manner as an eligible criminal charge or conviction.

That does not necessarily mean that an individual has no options. The appropriate remedy depends on whether the matter involved a dismissed TRO, an existing FRO, or a separate criminal charge arising from an alleged violation of a restraining order.

The attorneys at the Tormey Law Firm represent individuals in restraining order matters throughout New Jersey, including applications to vacate existing final restraining orders and criminal matters arising from alleged violations.

What Happens to a Temporary Restraining Order That Is Dismissed?

A temporary restraining order is generally entered at the beginning of a domestic violence case and remains in place while the matter proceeds toward a final hearing.

At the final hearing, the court determines whether the plaintiff has established the legal requirements necessary for entry of a final restraining order. A TRO may also be dismissed before or at the hearing under appropriate circumstances.

When a TRO is dismissed and no FRO is entered, there is no active restraining order remaining against the defendant. Because the domestic violence proceeding is civil rather than a criminal prosecution, the dismissed TRO is not something that is ordinarily addressed through New Jersey’s criminal expungement statutes.

However, the fact that a domestic violence complaint and TRO previously existed may remain within records maintained by the courts and law enforcement. A dismissal therefore should not be confused with the criminal expungement of an arrest or conviction.

Can a Final Restraining Order Be Expunged?

A final restraining order cannot simply be “expunged” under New Jersey’s criminal expungement laws.

Unlike a temporary order, an FRO does not automatically expire after a particular number of months or years. Once entered, it continues unless and until a court enters an order modifying or dissolving it.

For a defendant who wants an existing FRO removed, the appropriate procedure is generally to ask the Family Part of the Superior Court to vacate the restraining order.

This is an important distinction. An individual seeking to clear an eligible criminal conviction may pursue an expungement. An individual seeking to eliminate an existing FRO must instead establish a legal basis for the court to dissolve the order.

How Do You Remove an Old Final Restraining Order in New Jersey?

New Jersey law permits a defendant to apply to the court to dissolve a final restraining order when there is good cause to do so.

These applications are commonly referred to as motions to vacate an FRO. Courts evaluating such requests consider whether circumstances have changed sufficiently to demonstrate that continued protection under the existing order is no longer necessary.

The passage of time alone does not automatically result in dismissal. Instead, the court considers the circumstances of the particular case and the parties’ history since entry of the order.

An individual seeking to vacate an FRO should therefore be prepared to demonstrate why the circumstances that originally supported the restraining order no longer justify its continuation.

What Is a Carfagno Motion?

The factors traditionally considered when a defendant seeks to dissolve a final restraining order come from the New Jersey case Carfagno v. Carfagno.

A court considering a motion to vacate may examine a number of circumstances, including the current relationship between the parties, whether the protected party continues to fear the defendant, the defendant’s conduct since entry of the order, any violations of the FRO, subsequent acts of violence, substance abuse concerns, counseling, and other facts bearing upon whether continued restraints remain necessary.

No single consideration necessarily determines the outcome. The court evaluates the circumstances as a whole in deciding whether good cause exists to dissolve the order.

Because these applications are highly fact-specific, the evidence presented in support of the motion can be particularly important.

Does the Plaintiff Have to Agree to Remove the FRO?

The plaintiff’s position is relevant, but consent by itself does not automatically terminate a final restraining order.

An FRO is a court order. The parties cannot privately agree that it no longer applies, nor can they simply resume prohibited contact while the order remains in effect.

If the protected party wants the FRO dismissed, the request must still be presented to the court. Similarly, when the defendant files a motion seeking to vacate an FRO, the court makes the ultimate determination as to whether the legal requirements for dissolution have been established.

Until the court actually dismisses or modifies the order, the defendant must continue to comply with all of its terms.

What If the Restraining Order Was Entered Years Ago?

The age of an FRO can be relevant, particularly when the defendant has complied with the order for a substantial period and circumstances have materially changed.

There is no automatic expiration date for a New Jersey FRO. A restraining order entered many years ago can remain enforceable today unless it has been dissolved by the court.

For someone with an older FRO, the more important question is whether the circumstances now support a finding that the order is no longer necessary.

A lengthy period without violations or additional incidents may be relevant to that determination, but the court will consider the complete circumstances rather than relying solely on the number of years that have passed.

Can a Restraining Order Affect Employment or Firearms Rights?

A final restraining order can have consequences beyond restrictions on contact with the protected party.

Among other consequences, an FRO can significantly affect an individual’s ability to possess firearms. New Jersey domestic violence law imposes weapons-related restrictions while a final restraining order remains in effect.

The consequences associated with a domestic violence matter depend upon how the case was resolved and whether there are any related criminal charges or convictions. For these reasons, it is important to determine whether the issue involves an active FRO, a dismissed domestic violence proceeding, a related criminal matter, or some combination of these issues.

Can a Restraining Order Violation Be Expunged?

A criminal charge for violating a restraining order is different from the restraining order itself.

An alleged violation can result in a criminal contempt charge. Because contempt is a criminal matter, the resulting arrest, charge, or conviction may potentially be eligible for expungement depending upon how the case was resolved and whether the individual satisfies New Jersey’s expungement requirements.

For example, eligibility may depend upon whether the contempt charge was dismissed or resulted in a conviction, the individual’s other criminal history, the applicable waiting period, and whether any statutory restriction applies.

Therefore, although the underlying TRO or FRO is not expunged as a criminal record, a separate criminal case arising from an alleged violation may present an expungement issue.

What Is the Difference Between Expunging a Record and Vacating an FRO?

Although the terms are sometimes used interchangeably, they describe two different forms of legal relief.

An expungement generally concerns qualifying criminal records, such as arrests, charges, and convictions. Vacating an FRO involves asking the Family Part to terminate an existing civil restraining order.

Someone who has both an FRO and a related criminal history may therefore need to address the two matters separately. Successfully expunging an eligible criminal case does not, by itself, terminate an FRO. Likewise, obtaining an order vacating an FRO does not necessarily expunge a separate criminal conviction.

Identifying exactly what appears on an individual’s record is an important first step in determining the appropriate legal remedy.

New Jersey Attorneys for Vacating Final Restraining Orders

If a final restraining order was entered against you in New Jersey, you may have options for seeking its removal even though an FRO is not subject to the traditional criminal expungement process.

The attorneys at the Tormey Law Firm handle domestic violence and restraining order matters throughout New Jersey. We can review the circumstances surrounding the original FRO, evaluate developments that have occurred since the order was entered, and determine whether there may be grounds to file a motion seeking to have the order vacated.

We can also evaluate whether any related criminal charges or convictions may separately qualify for expungement.

Contact the Tormey Law Firm to discuss an existing New Jersey restraining order, a potential motion to vacate an FRO, or the expungement of a related criminal matter.