Arndt, Sutak & Miceli, LLC

NJ Courts take steps to eliminate the excuse of inadvertent Restraining Order Violations

As I explained in a previous blog, on some occasions, a victim of domestic violence may opt for (or the responding police may insist upon) filing criminal charges at the same time as the request for a temporary restraining order. The Prevention of Domestic Violence Act (PDVA) mandates that courts must “protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public.” N.J.S.A. 2C:25-18.

Parties involved in a matter that includes domestic violence may seek resolution in the Family Division (otherwise known as Family Court) while a criminal case may be simultaneously brought against one of the parties in Criminal Court. In addition to criminal cases, the parties may also be involved in domestic violence contempt matter, a corresponding child protection matter, a child custody matter, and/or a divorce matter.

Because of the many different avenues the matter can take, and the various avenues requiring court intervention, more than one no-contact provision can be entered involving the same parties. Sometimes, these no-contact provisions even have conflicting terms and limitations.

How does this happen? A defendant in a criminal matter may be released pursuant to the Criminal Justice Reform Act (CJRA) with a no-contact condition with a victim which precludes them from contacting the victim in any way. This no-contact condition can apply to the victim, minor children in common (or not in common) or other family members or friends of the victim. A Family Court judge may separately enter a restraining order that includes a no-contact provision and order visitation in a child protection matter, custody matter, or divorce matter.

Unfortunately, often there was not always clear communication or coordination between the various courts. As a result, Judges hearing the matters were sometimes unable to ensure that the orders were not contradictory to other orders in these companion matters. This lack of communication can affect everyone involved. In some circumstances, they have even caused some defendants to inadvertently violate orders while complying with other conflicting court orders.

You may be wondering how this is possible. Here is an example that I witnessed. I represented a man who had what he described as a mutual physical altercation with his girlfriend with whom he lived which led to their neighbors contacting the police. Both my client and his girlfriend both advised police that they did not want a restraining order against the other. Despite this, the police issued a criminal charge against each party as they each had visible physical injuries from the other. Both parties were advised that they were not permitted to speak to one another.

A few days later, my client’s girlfriend went to the Family Court and obtained a temporary restraining order against my client. She was advised that my client was not permitted to speak to her or she could contact the police. The parties had a child together and his girlfriend alleges that when she asked about speaking to my client about child care (his mom was the child care provider), she alleged that she was told that she could contact my client and his family so long as it was only about the child and child care. Shortly thereafter, his girlfriend began sending him messages about their child and making arrangements for pick up and drop off for the coming week. Whether she realized it or not, his girlfriend was in violation of the no-contact condition of the criminal charges for contacting my client.

The Judiciary has recognized that this scenario, or ones similar to it, require that there be clear and direct instructions in orders restricting contact among parties, especially when the parties are subject to more than one protection order involving one another. On May 22, 2020, the Administrative Office of Courts created a comprehensive process to ensure that before no-contact provisions are imposed, the Courts should review all available systems for other court matters happening at the same time (called contemporaneous or companion matters) to ensure the judge is aware of the conditions of any other no-contact provision entered. This allows the judge to consider the prior existing conditions that are in place before issuing a new no-contact condition. This process along with the use of systems to track this information allows a judge to ensure that all provisions of each order remain consistent. Importantly, this process also requires that a judge contact another court if they determine that a modification to a prior no-contact condition is warranted and what they intend to order.

Finally, the process also specifically reminds all judges that if there is a conflict regarding contact with a child, the Family Court order trumps other court orders consistent with R. 3:26-1(b).

You may be asking yourself why does any of this matter to me? Any violation of a restraining order, including any contact at all with the individual it is in place to protect, can result in your being arrested and charged with either a disorderly persons offense or a fourth degree crime. (N.J.S.A. 2C:29-9) Violating a restraining orders can, and in some circumstances must, result in a jail sentence. (I will address the potential penalties and severity in a future blog.)

This process now ensures that proper communication occurs between the Criminal Division and the Family Division. Courts will clearly articulate to the defendant, as well as the victim, what conditions remain in place. Presumably this will then weed out inadvertent violations and reduce a Defendant’s excuse of inadvertent violation of the no-contact provision. In both cases, survivors of domestic violence now will have more clear protection while those accused of committing domestic violence inappropriately will be protected from the baiting by a victim to respond to messages and violate the no-contact.

If you or a loved one has been charged with violating a restraining order, the lawyers at Arndt & Sutak can assist you by exploring all of your possible defenses. A conviction for violating a restraining order has significant consequences, regardless of whether the order was temporary or final, so it is imperative that you consult with an experienced trial lawyer immediately. Contact our office today at (732) 867-8894 for a consultation.

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