The New Jersey Prevention of Domestic Violence Act serves an enormously important function to protect abused individuals. However, the protections of the Act can be misused in a divorce or custody litigation to evict someone from a shared residence, to obtain temporary custody of children or to get control over financial records and personal property.
If you believe that your spouse, your girlfriend or your boyfriend has filed a false temporary restraining order against you, there are steps you can take to protect yourself. A conviction of domestic violence can affect your employment, a conviction of domestic violence can last forever and a conviction can have a negative impact on a pending divorce or custody matter.
1) Speak to an attorney. A surprising number of litigants go to court to defend a domestic violence action, without ever speaking to an attorney. Although money may be tight for you, this is an extremely important hearing. A domestic violence hearing is a formal trial and the Court follows the court rules and the rules of evidence. In domestic violence hearings, you are going into the trial, “blind,” and other than the factual allegations listed on the temporary restraining order, you do not get advance notice of what witnesses will appear at trial, what those witnesses will say and what documents will be offered at trial against you. Also, it may be possible to enter into a consent order with the victim, prior to trial. Before entering into any consent order, which may determine custody, payment of temporary support or other relief, an attorney should be consulted. It can be extremely difficult to modify consent orders.
2) Consider asking for an adjournment. For the benefit of the litigants, the Court will schedule final restraining order hearings very soon after the entry of the temporary restraining order. Although you may want to get into court as soon as possible to hopefully dismiss the restraining order, you may need to request an adjournment to retain counsel, or you may need to request an adjournment, so that you can subpoena any witnesses or obtain any documents you need for trial.
3) Request records and subpoena police officers. In many cases, there are no witnesses to domestic violence incidents. If the police were called to the scene during your domestic violence incident, they can be helpful witnesses and they often prepare reports documenting their observations and the claims made by each party. A victim may have prepared a statement documenting what occurred. You will need to serve a subpoena on a police officer, if you want them to appear as a witness for you at trial and you will need to make a document request for records from a police department as soon as possible, so that you have all police reports and witness statements at the time of your trial.
4) Move to dismiss the temporary restraining order. Temporary restraining orders are entered based on the representations of one party. In entering an order, the courts have substantial discretion to make temporary determinations regarding possession of a residence and temporary custody of children. In some cases, depending on the facts, it might be worthwhile to petition the court to dismiss the temporary restraining order, even before the final hearing is scheduled.
5) Calm down. Trial judges do their best to “get to the truth.” You can’t control the judge, but you can control the presentation of your case. Gather your evidence, do your best to tell your story calmly and always tell the truth.
Amanda W. Figland concentrates practices in family law, where she handles divorce, dissolution of civil unions, partition, and child support and custody issues. She works out of Obermayer’s Cherry Hill, NJ office and can be reached at 856-795-3300 or at Amanda.Figland@obermayer.com.