Vacating a Restraining Order in NJ
How do I file a Motion to Vacate a Restraining Order in New Jersey?
Removing an old restraining order in New Jersey is possible and, because they are permanent and never expire, you must file a motion to vacate a restraining order or they will remain forever on your record and background.
If you or a loved one needs assistance vacating a restraining order in NJ, you have come to the right place. The NJ restraining order attorneys at the Tormey Law Firm LLC have extensive experience dealing with these issues in Family Court and have handled these cases is almost every county in the State of NJ including in Middlesex County, Monmouth County, Ocean County, and Somerset County. In addition, Mr. Tormey has been cited as a legal resource on domestic violence in several NJ publications and has appeared on CBS radio as a guest expert. As a result, our attorneys are ready and able to assist you with your restraining order matters immediately at (908)-336-5008. The initial consultation is always provided free of charge.
Here are some real restraining orders our experienced attorneys successfully removed for clients throughout New Jersey:
- Essex County Final Restraining Order Removed After 21 years
- Passaic County restraining order lifted from 1996
- Morris County protection order removed from 1990
- Morristown restraining order vacated after 14 years
- Newark Restraining Order lifted after 16 years
- Union County restraining order removed and dismissed
- Elizabeth restraining order lifted after 16 years
- Sussex County protection order from 2003 vacated
- Newton restraining order dismissed after 15 years
- Bergen County restraining order lifted after a decade
- Warren County protection order from 2011 removed
Here is a five star review from one of our many satisfied restraining order clients:
Posted by Rose
“Great law firm. I emailed them on a Saturday night and Travis got back to me Sunday morning. He explained everything and put my mind at ease. One of his Associates Tom Ercolano was my lawyer. He did a great job and got a settlement with the other party”
How to Vacate a Restraining Order in NJ
In New Jersey, restraining orders are permanent and never expire. There are two main ways to vacate a restraining order if one has been entered against you. They are as follows:
- Voluntary dismissal: In these cases, the victim comes forward and decides that he or she no longer wants the restraining order in place. He or she must voluntarily come forward and tell the court that they want the restraining order removed. The victim will speak to a domestic violence counselor and sign some paperwork acknowledging their rights, that they are dismissing the restraining order freely and voluntarily, and then they will place these same wishes on the record in court with the judge. If the judge agrees, the restraining order will be dismissed.
- NOTE: You cannot contact the Plaintiff (if you are a Defendant), to see if they are willing to drop the restraining order. You also cannot have someone else contact them on your behalf. This would be a violation of your restraining order and you could be arrested and charged criminally with contempt. However, you can hire an attorney to potentially file a motion to have it removed and your lawyer can contact to Plaintiff first to see if they will agree to a voluntary dismissal without the necessity of filing a formal motion.
- Motion to vacate a final restraining order (FRO): The second way to vacate a restraining order is by motion. You can file an application with the court to try and have the restraining order removed. This is different from an appeal of an issuance of a final restraining order. An appeal must be filed within 45 days of the court’s decision and basically says that the judge made a mistake and the restraining order should not have been issued in the first place. A motion to vacate, on the other hand, argues that there has been a “change in circumstances” such that the permanent restraining order is no longer necessary. For example, if the parties no longer reside in the same state that would be a good issue to raise with the court. Also, if the parties had younger children in common but now the children are grown and they don’t deal with each other anymore on a regular basis that would be a valid argument to make. Finally, the passage of time is crucial. If it has been 5 or 10 years and the parties have moved on with their lives, have new significant others, new family’s, etc. then the defendant can try and have the restraining order vacated because it is no longer necessary. It is also important to consider if the plaintiff still wants the restraining order in place, if he or she is still afraid of the defendant, and if there have been any violations of the restraining order while it has been in place.
Motion to Vacate an Old Restraining Order – The Carfagno Factors
The case of Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995) establishes eleven factors a court must weigh to determine if a defendant established the requisite good cause to vacate a final restraining order (FRO) and they are as follows:
(1) whether the victim consented to lift the restraining order;
(2) whether the victim fears the defendant;
(3) the nature of the relationship between the parties today;
(4) the number of times that the defendant has been convicted of contempt for violating the order;
(5) whether the defendant has a continuing involvement with drug or alcohol abuse;
(6) whether the defendant has been involved in other violent acts with other persons;
(7) whether the defendant has engaged in counseling;
(8) the age and health of the defendant;
(9) whether the victim is acting in good faith when opposing the defendant’s request;
(10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and
(11) other factors deemed relevant by the court.
The Judge will considers these factors, any paperwork submitted by both parties, and oral arguments and testimony to determine if a final restraining order should be removed.
How do I file a motion to have my old restraining order lifted?
You should probably hire an attorney. As you can see, this is a complicated process which requires a written motion be filed with the court. Our lawyers will draft this paperwork for you and make the appropriate arguments in our motion papers emphasizing the above factors which weigh in favor of the final permanent restraining order being lifted and removed. Then, the Plaintiff must be served with these motion papers so he or she will have an opportunity to submit written opposition (if they choose) and appear at the motion hearing in court.
Sometimes the court has difficulty serving the Plaintiff with the paperwork. It is the Plaintiff’s burden to update their address with the court if they move. The Court will attempt to find their contact information online using google, facebook, etc. in order to reach out to the Plaintiff and make sure he or she receives a copy of the motion to vacate the restraining order. If the Court is unable to reach the Plaintiff, as long as reasonable efforts have been made to find him or her, the Court can proceed with the motion.
Once the motion is filed and the Plaintiff receives the paperwork, the case will be scheduled for a hearing in court. At that hearing, the Judge will hear oral arguments in favor of the motion and will listen to any objections from the plaintiff. The Judge may also take testimony from the plaintiff and the defendant as to what has transpired since the issuance of the original order and where the parties are now. Then, the Judge will make a ruling.
Where do I file to motion?
In the Superior Court in the County in which the final restraining order was issued.
If my motion is denied, can I file again?
Yes. Wait for some more time to pass and the circumstances to continue to change and then you can file the motion to remove the restraining order again.
If the motion is granted, what happens?
The final restraining order you have been dealing with for a long time will be lifted and dismissed. You will be removed from the database for domestic violence offenders. You will no longer be prohibited from contacting the plaintiff. However, if a new act of domestic violence occurs, the plaintiff can always file for a new temporary restraining order. You will no longer be detained at the airport when traveling. You are no longer prohibited from owning or possessing firearms.
My old restraining order was removed, can I get my guns back?
Once your old restraining order is lifted and removed, you are no longer prohibited from owning or possessing firearms. You can now apply for a gun permit in New Jersey. However, the police department may still object to the issuance of your permit because of this restraining order being previously issued (even though it was dismissed). If they do object, you can appeal that objection to the County Court before a Judge and have a hearing and we can assist you with that.
I need to get rid of an old restraining order in NJ
For additional information regarding potentially vacating a permanent restraining order in NJ, contact the Tormey Law Firm for help. Our initial consultations with an experienced restraining order defense attorney are always provided free of charge at (908)-336-5008.