Domestic Violence -- Dissolving Restraining Orders

1. How can a restraining order be dissolved?

The victim has a right under the Domestic Violence Act to either dissolve or modify a final restraining order. The victim must go to Family Intake to be screened to determine that the change is voluntary, without coercion and duress, and to receive counseling concerning the victim’s rights and the ramifications of the dismissal. The victim is no longer offered the restraints and protections of the Domestic Violence Act, but another restraining order may be sought in the future if necessary. The victim is further informed as to the “cycle of domestic violence theory.”

2. What are the factors that a court uses to determine whether the defendant has established good cause to dissolve a restraining order?

If a person wants to dissolve a restraining order, an application is made to the Family Court. The judge who hears the application must have a complete record of the original domestic violence hearing(s). The court must review these proceedings so as to make an informed decision as to whether or not to dissolve or modify the restraining order.

There are eleven factors to consider for the “good cause” necessary to dismiss or modify a restraining order, developed in the case of Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995):

a. Consent of victim to lift the order

The first factor is whether the victim consents to dissolve the final restraining order. Where the victim has consented and the court finds that the victim is doing so voluntarily, the court should dissolve the order without further consideration or analysis.

b. The victim’s fear of the defendant

The Domestic Violence Act protects victims from physical harm. Yet, physical safety is not all that the Legislature intended to protect. Recognizing that domestic violence occurs in a relationship where one party asserts power and control over the other, the victim is also protected from mental or emotional harm.

Fear of the defendant is at the center of the cycle of power and control existing in domestic violence situations. Restraining orders have the effect of empowering the victim to stand up to the defendant. Thus, fear is important to consider.

c. Nature of the relationship between the parties today

Here, the court must look to determine whether the relationship today is one that would allow the defendant to exercise control over the victim. Where the parties do not have children in common and have little other reason to contact each other, it would be more appropriate to dissolve a final restraining order. Where the parties have reason to contact each other, such as where there are children in common, it may be less appropriate to dissolve the order. Another factor for the court’s consideration is the relationship of the parties at the time the order was entered. If, for example, there was a dating relationship when the order was entered, but both parties are married to others two years later when the application is filed, dissolution may be more appropriate. Certainly, the physical proximity of the parties to each other is another factor bearing upon the relationship. If the parties live in different areas, depending upon other factors present, dissolution may be appropriate.

In all cases, however, when considering the relationship of the parties, the court must determine whether there are indicia of control and domination exercised by the defendant over the victim in the limited amount of contact between the parties permitted under the final restraining order.

d. Contempt convictions

The fourth factor is the number of times that the defendant has been convicted of contempt for violating the final restraining order. The number of violations of the final restraining order gives an indication that the final restraining order is not totally effective in breaking the cycle of power and control exercised by the defendant.

e. Alcohol and drug involvement

In most domestic cases, drugs and alcohol play a very important factor. Accordingly, drug or alcohol use is highly relevant in determining whether the victim still needs protection.

f. Other violent acts

The sixth factor is whether the defendant has perpetrated violent acts upon the victim or other persons. The defendant’s violent nature as evidenced by other violent acts is relevant to whether the victim needs continued protection.

g. Whether defendant has engaged in domestic violence counseling

Whether the defendant has engaged in domestic violence counseling is the seventh factor. Counseling may be effective in breaking the cycle of power and control.

h. Age/health of defendant

In some cases of age or infirmity, it might be appropriate to dissolve the final restraining order.

i. Good faith of victim

The next factor is the good faith of the victim in opposing the defendant’s request to dissolve the final restraining order. The court is mindful that sometimes one party to a divorce action abuses the Domestic Violence Act to gain an advantage in the underlying matrimonial action.

j. Orders entered by other jurisdictions

Another factor is whether the victim is protected from the aggressor by “a verifiable order of protection from another jurisdiction.” Under 18 U.S.C. § 2265(a), a restraining order entered in one state is entitled to full faith and credit by courts of another state. Thus, the fact that a foreign state has entered a restraining order protecting the victim from the aggressor must be known and considered by the court.

k. Other factors deemed relevant by the court

The court also needs to consider any other factors raised by the parties which, based upon the evidence presented, may show that good cause exists to dissolve the restraining order.

3. I separated from my wife and she then obtained a restraining order against me. We recently reconciled and are now living together. Is the restraining order automatically dissolved based upon our reconciliation?

No. Restraining orders can only be dissolved by court order. Even if a separated couple reconciles, the restraining order is still enforceable. It is not automatic that a court will dissolve a restraining order, even if the parties reconcile. It is important to emphasize that the apparent reconciliation between people with a long history of domestic violence seldom marks the end of difficulties. It would be unwise and improper to reconcile if a restraining order is still in force. If there is a flare-up in the relationship, then the wife only has to make one call to the local police department, and the husband can be locked up for a violation of the order.

An illustrative case is Stevenson v. Stevenson, 314 N.J. Super 350 (Ch. Div. 1998), where the court denied the plaintiff’s request to dissolve a restraining order. Here, the wife was extremely battered and there was a history of domestic violence of the defendant with others, beyond the domestic arena. There was also alcohol abuse and a history of assaultive behavior with third parties. In denying the plaintiff’s request, the court reiterated that the Domestic Violence Act’s policy is to protect victims of domestic violence, even from themselves. The court noted that the dissolution of a restraining order can only be made if there is “good cause” shown. The Stevenson court further held that the court has discretionary, not mandatory, authority to dissolve a restraining order.

In summary, while a victim has a right to dismiss or modify the restraining order, that right is not absolute, and the court uses its discretion in determining the dismissal. In my experience, most courts will impose several conditions on the parties before it dissolves a restraining order. A court may require the parties to attend counseling, or may compel a husband to attend anger management. Moreover, the court may require the parties to attend drug and alcohol counseling if necessary.