New Jersey’s Two-Track System for Handling Domestic Violence Cases

Domestic violence is becoming more and more prevalent these days. Domestic violence includes intimidation, sexual violence or physical assault, battery, threats, and emotional abuse.  In a recent study, 1 in 3 women and 1 in 4 men in New Jersey were the victims of some instance of physical violence by a partner.  New Jersey’s domestic violence helplines receive more than 20,000 calls every day, and domestic violence in the state comprises 15% of all violent crimes. Couples with access to firearms are five times more likely to have a domestic violence incident than those who do not. Considering the rise in abuse cases in New Jersey and across the country, it is not surprising that the courts have seen an increase in these cases. New Jersey’s legal system approaches domestic violence through a civil and criminal process.  The civil process establishes a temporary and possibly, permanent restraining order, while the criminal charges are separate.

At The Tormey Law Firm, our experienced attorneys understand the complex and sensitive nature of domestic violence cases in Warren County, Passaic County, Morris County, Union County, Essex County, Hudson County, Middlesex County, and throughout New Jersey. When we represent you in court, you can be sure your case will be handled by experienced, skilled investigators and battle-tested trial lawyers. We know how to gather evidence and interview witnesses to build a rock-solid case in Family Court, as well as Criminal Court, for domestic violence matters. Our dedicated legal team has successfully represented thousands of clients in restraining order hearings and domestic violence charge cases in criminal courts across the state. Contact our dedicated team at (908)-336-5008 for a confidential free consultation.

Legal Process in Civil Domestic Violence Cases: A New Jersey Overview

Step 1: Determine Eligibility

It is important to remember that restraining orders are granted under certain conditions. If the victim and the defendant were or are married, cohabitate, are dating, or share a child, a restraining order in the context of domestic violence can be sought. Once the victim of domestic violence has been established, a few other things need to exist. First, a domestic violence act must have occurred. Next, this cannot be the first time (except in limited cases where the violence is extreme). Lastly, the victim must need a protection order to prevent further harm to them.

Step 2: Request a Restraining Order

To get a Temporary Restraining Order (TRO), the victim must go to the Family Part of the Chancery Division of the Superior Court in their county, in the county where the abuser resides, or in the county where the incident took place.  If an order is needed but the courts are closed, one can be obtained at the municipal court or the police station.  The police will contact a judge who will enact a TRO.  Suppose the victim is injured and unable to file for a restraining order for themselves. In that case, a judge can issue an order with a sworn complaint or a representative who testifies to the affirmation of domestic violence.

Step 3: Fill out the Forms Correctly and Completely 

The victim needs to be completely honest, avoiding hyperbole or minimization of the situation.  The complaint should provide a detailed account of what occurred when it happened and if weapons or the threat of weapons were involved.  Any violent acts should be described as precisely as possible.  The more the authorities know about your dangerous situation, the greater the chance they can protect the victim.

Step 4: TRO Hearing Process

If the judge agrees that the victim is in danger, they will approve a TRO, which will stay in effect for 10 days or until a hearing is held to determine if the victim will be granted a Final Restraining Order (FRO). To receive a TRO, a hearing is set, usually within 10 days of the temporary order. If the victim does not attend the hearing, the TRO will expire, and they must apply for another one, starting the process over again. If the defendant does not show up for the hearing, the court may issue a default judgment in favor of the victim and grant the FRO. Alternatively, the judge may schedule another hearing to allow the accused and the accuser to present their side.  Both parties can testify and bring witnesses to substantiate their testimony before the FRO is issued. An FRO will remain permanent unless you petition the court to dissolve it.

Step 5: Understanding Restraining Order Provisions

Several provisions in a restraining order are meant to protect the victim. The alleged abuser may not stalk, follow, or threaten to harm the victim. They may not contact them by text, email, phone, or through third parties. The accused may enter the residence accompanied by the police to remove their personal effects, but they cannot go to the victim’s work or their children’s school.  All protective orders (TRO and FRO) require the defendant to surrender their weapons.

What to Expect When Facing Criminal Domestic Violence Charges

Initial Police Response and Arrest

There are two ways domestic violence charges may be initiated.  If the police are called to the scene of an alleged domestic violence incident, they will begin an investigation to determine the cause of the call.  They will look for signs of injury or defense wounds on the parties involved.  There is a mandatory arrest policy that goes into effect when the victim shows signs of injury, a TRO or FRO has been violated, or there is probable cause that a weapon was used.  Even when that criterion is not met, if the police suspect an act of domestic violence occurred, the aggressor can be arrested.  If there is no probable cause for an arrest, the victim can tell the police they want to press criminal charges, and then the alleged aggressor can be arrested. If there is clear evidence of mutual violence, both parties may be arrested, but this rarely happens.

Booking and Initial Bail Review

Immediately after arresting a defendant for domestic violence, the police will check their system to see if the defendant has any outstanding warrants. They will also check for any open cases and the defendant’s criminal history. All domestic violence charges must be processed on a warrant-complaint, meaning the defendant will be taken to the county jail and must appear before a judge for a bail review within 24-48 hours. Depending on the severity of the situation and the defendant’s criminal record, the accused may be given their next court date, then be released and be free to go. This outcome is generally used for first-time offenders when the victim was not harmed, had a very minor injury, and weapons were not involved. Pretrial Services will evaluate your criminal history, the accusation, and other pertinent information and arrive at a score through a Public Safety Assessment (PSA). The defendant receives a score that indicates whether they are a flight risk or a risk to the community. New Jersey no longer has a cash bail system, so the PSA and other factors are weighed heavily.

Detention Hearing

Conversely, the prosecutor may move for detention in your case, meaning they want the court to keep you in jail while your case is pending. If the prosecutor believes the accused should not be released, they can request incarceration until the case is resolved. Then, you will have to undergo a domestic violence detention hearing where the judge can decide whether or not you will be held in jail until your case is over. You most definitely need an attorney representing your side in the best possible light when you have a detention hearing for domestic violence, as your freedom will be impacted for the duration of your case if it does not go well.

Initial Appearance and Indictment in Criminal Superior Court

The court will read the defendant’s rights at the defendant’s first court appearance. The prosecutor will decide whether to continue with the prosecution for the specific charges filed and may discuss reducing them with the defendant’s attorney.  If the prosecutor chooses to go forward, they must present the charges to a grand jury, which will determine if there is enough evidence for an indictment.  If their findings are affirmative, there will be an arraignment in 14 days, and the defendant will enter a plea of guilty or not guilty.  The case is closed if there is insufficient evidence to warrant further action.

Pre-Trial Preparation and Conferencing

Before the court date, the defendant and their attorney can meet with the prosecutor to get the charges reduced or dropped.  If the trial is held, the victim may serve as a witness for the prosecution. Even if the witness no longer seeks to press charges against the accused, only the prosecution can drop the charges. Pretrial conferences will be held before the actual trial to inform the judge about how the case progresses toward trial, any problems with contacting witnesses, discovery, or other hindrances.  The defendant can ask for a judge or jury trial.  This should be done under the advice of counsel.

Trial Process

Once the trial has begun, the prosecutor will give the state’s evidence to support a conviction, and the defense attorney will challenge them. The defense can present its own evidence in support of the defendant’s innocence and counteracting the state’s accusations. Both parties may present their witnesses and have an opportunity to cross-examine the other side’s witnesses. Building a solid narrative and defense is absolutely imperative in order to win at trial in criminal court.

Post-Trial Outcomes and Sentencing

If the verdict is “not guilty,” the defendant can go.  If they are found guilty, a pre-sentence investigation report (PSI) written by a probation officer provides information to the judge about the defendant that will guide the judge’s decision regarding sentencing.  It details the offender’s role in the crime, previous charges and convictions, TRO or FRO violations, employment, physical and mental health, and prospects for rehabilitation, such as counseling, community service opportunities, and educational programs.  The judge will use this information as a component in the decision-making process for sentencing as they also consider the severity of the crime and if the defendant is a habitual offender. The defendant’s attorney can argue mitigating factors in their favor to support a lesser sentence and lower penalties. This is critical to avoid the maximum punishments in your case.

Appeals Process

If the defendant and their lawyer believe a mistake was made during the trial, they can file an appeal. An appeal cannot be filed merely because of disagreement with the verdict.  The attorney must present a defect in the procedures or the judge’s trial handling.  Motions can be made to the Appellate Division of the Superior Court to determine the appropriateness of the sentence and the decisions made by the court at trial.

Consult an Attorney Prepared to Fight Your Domestic Violence Case in Criminal or Family Court in New Jersey

Domestic violence cases are rarely cut and dried. Circumstances frequently affect the problematic situation. Our attorneys have successfully accompanied many clients through the court process when facing restraining orders in the Superior Court, Family Division and those facing criminal domestic violence charges in the Superior Court, Criminal Division or the Municipal Court in the municipality where the charges were filed, depending on the severity of the alleged crime.  Our domestic violence lawyers will do everything in our power to avoid an FRO being issued against you, or to reduce or drop your criminal charges. The Tormey Law Firm proudly serves clients in Ocean County, Monmouth County, Sussex County, Bergen County, Mercer County, Atlantic County, and throughout New Jersey. We realize this is taking an emotional toll on you and will work aggressively to get you the best possible outcome. It is crucial to begin working on your defense immediately.  We can explore alternative resolutions that could minimize this case’s impact on you and your future.  Call us today at (908) 336 -5008, or for an initial free consultation, or reach out to us online.