In New York, a Final Order of Protection issued by the Family Court lasts either two or five years. In Pennsylvania, a Protection from Abuse Order lasts up to three years, and in some instances can be renewed. In New Jersey, a Final Restraining Order (“FRO”) issued under the Prevention of Domestic Violence Act (“PDVA”) lasts indefinitely. While a victim can request the order to be dismissed, or a defendant can request it to be vacated, if neither person makes that request, an FRO may last until the day either or both parties die (and even then, it may not terminate!)
If an FRO has been entered either to protect you or against you, or if the entry of one is pending, it’s important to understand the consequences. It’s also important to understand what it would take to dismiss or vacate the restraints.
An FRO issued under the PDVA carries with it a huge impact, and often neither the victim nor the defendant fully understand the actual impact when restraints are sought or imposed.
In general, the entry of an FRO against you can have serious consequences beyond the duration of the Order. The Order prohibits you lawfully possessing a firearm, your name enters a Domestic Violence Central Registry, you can be assessed a fine, and if you violate the FRO, you could end up being charged criminally for the violation. Often the charge for violating the FRO is more impactful than the FRO itself.
It is possible, in the right circumstances, that the person who secured the FRO to protect him or her can voluntarily request that the restraints be vacated. However, that request is not something that will be automatically granted. As the protected party under the FRO, a Plaintiff can request that the FRO be dismissed after its entry. Before the request will be granted or considered, however, the Plaintiff must receive counseling from the Court as to his/her rights, the consequences of vacating the restraints, and may be required to fill out a Certification of Dismissal, which would then be reviewed by the Court. Provided the Court finds that the FRO is being dismissed voluntarily, and that there is an understanding of the rights and consequences they’ve been counseled on by the Court staff, the FRO will be dismissed.
As the Defendant, the procedure is slightly different and success in vacating an FRO requires meeting a much higher standard. To vacate the entry of an FRO after the time to reconsider or appeal it has lapsed, the Defendant must file a Notice of Motion to vacate the FRO. If a transcript of the proceeding is still available, it must be submitted in support of the application. Further, the Court cannot proceed with the request if the Plaintiff cannot be served with the Motion and there is no showing of good cause to proceed without the protecting party in the Plaintiff’s absence and without having been served.
Provided there is nothing which stops the Court from addressing the substance of a request by a Defendant to vacate the FRO (e.g. there is nothing procedural which stops the Court from moving forward), the Court will review the eleven factors created by the Trial Court in Carfagno v. Carfagno, 288 N.J.Super. 424 (Ch. Div. 1995) to determine if there is a reason to vacate the restraints. Those factors are:
- Whether the victim consented to dismiss the restraining order;
- Whether the victim fears the defendant;
- The nature of the relationship between the parties today;
- The number of times that the defendant has been convicted of contempt for violating the order;
- Whether the defendant has a continuing involvement with drug or alcohol abuse;
- Whether the defendant has been involved in other violent acts with other persons;
- Whether the defendant has engaged in counseling;
- The age and health of the defendant;
- Whether the victim is acting in good faith when opposing the defendant’s request;
- Whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and,
- Any other factors deemed relevant by the court.
This is a very fact specific test, and the Court will certainly be guided by the facts that led to the issuance of the Final Restraining Order in the first place. The Court also will take into account any additional acts of domestic violence or violations of restraining orders since the FRO was issued. Given what’s at stake for both parties involved – the loss of necessary protections for the plaintiff and the ability to regain certain rights and anonymity for the defendant – it is advisable to have an attorney to help you through this process. The attorneys of Jacobs Berger, LLC, are not only skilled in obtaining FROs and defending against the entry of the initial FRO, but also have experience in seeking to vacate the restraints and opposing same. To understand more about the potential to dismiss or vacate an FRO, or how to fight off attempts at same, schedule a consultation today.
Source: State of New Jersey Domestic Violence Procedures Manual (Amended October 2008)
