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Military & Veteran Lawyer > Blog > Criminal > Final Restraining Orders (FRO) Are Not Easy to Change

Final Restraining Orders (FRO) Are Not Easy to Change

In the case, G.M. v. C.V., a New Jersey Superior Court from the Appellate Division denied a defendant’s request to vacate a FRO under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25–17 to –35.   The female Defendant’s motion to dissolve the FRO was denied because it did not include a transcript of the underlying 2004 FRO hearing.  Without getting distracted by that issue and ordering the entire transcript at great expense is a daunting requirement, transcripts are required to determine whether defendant has shown prima facie evidence of changed circumstances to dissolve the FRO. 

The parties divorced in March 2004 after a ten-year marriage. Of their three children, one is emancipated, one is in college and one is a teenager, who resided with defendant. Plaintiff moved to Florida and remarried in 2014.  

In August 2004, plaintiff obtained a temporary restraining order (TRO) under the Act against defendant, alleging as a predicate offense that defendant was harassing him. Then-Husband Plaintiff’s complaint stated that defendant made “repeated calls to [plaintiff] and others” that were “harassing and threatening,” causing him fear. The Wife-Defendant repeatedly called plaintiff’s girlfriend. 

Plaintiff also claimed, in the original request for a restraining order, that defendant had a history of committing acts of domestic violence against him. He accused defendant of coming into the house and taking items belonging to the children; asserting in vulgar language her claim to ownership of the house; demanding that plaintiff move into the laundry room; stabbing him in the arm; running after him with two butcher knives; locking him out of the house in cold weather when he was scheduled for tests on his heart; keeping him up by flashing lights; chasing and hitting him with a battery charger while disparaging him with coarse language; threatening to run her car off the road while he was a passenger; hitting him in the head with a tripod; locking him out of the house with the cat; and kicking him in the ribs, legs, and chest, spitting in his face, and calling him a “f**king loser” and “piece of s**t.” 

The FRO entered on August 18, 2004 by Judge John B. Dangler3 provided that defendant committed “an act of domestic violence.” It restrained defendant from contacting plaintiff’s girlfriend, her employer, and plaintiff’s brother and sister-in-law.  

In March 2016, defendant made application pursuant to N.J.S.A. 2C:25–29(d) to dissolve the FRO, alleging a “substantial change of circumstances” since its entry nearly twelve years earlier in 2004. In her supporting certification, defendant alleged the FRO should be dissolved to permit the parties to mediate a new parenting time schedule. She alleged the FRO posed a hardship to her in obtaining other employment. Other changed circumstances since 2004 included plaintiff’s move to Florida and the support of his former girlfriend to vacate the FRO. 

The trial court left the FRO in place. 

On appeal, ex-wife defendant, against whom there is the FRO, contends the court erred by not allowing the 2004 FRO record to be reconstructed so that her application to dissolve the FRO could be heard.  

The entry of a domestic violence restraining order requires a trial court to make certain findings. See Silver v. Silver, 387 N.J. Super. 112, 125–26, 903 A.2d 446 (App. Div. 2006). The court “must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25–19(a) has occurred.” 

Next, the court must determine whether a restraining order is required to protect the party seeking restraints from future acts or threats of violence. Silver.   A final restraining order under the Act can be modified or dissolved only by court order upon a showing of good cause. T.M.S. v. W.C.P., 450 N.J. Super. at 502, 163 A.3d 929. N.J.S.A. 2C:25–29(d). 

The defendant with the FRO must establish a threshold showing or prima facie evidence of good case.  Without a threshold showing of changed circumstances and good cause, there will not be a substantive trial that reaches the merits of whether or not the FRO should be dissolved. 

One court wrote as follows:  The party asking to modify or dissolve the FRO has the “burden to make a prima facie showing [that] good cause exists for dissolution of the restraining order prior to the judge fully considering the application for dismissal.” Kanaszka, 313 N.J. Super. at 608, 713 A.2d 565. That party must show “substantial changes in the circumstances” from what existed at the final hearing for the court to “entertain the application for dismissal” in order that the victim is not “forced to repeatedly relitigate issues with the perpetrator, as that itself can constitute a form of abusive and controlling behavior.” Ibid. A plenary hearing should only be ordered where this burden is met and there are “facts in dispute material to a resolution of the motion …. Conclusory allegations should be disregarded.” Ibid. (citing Lepis v. Lepis, 83 N.J. 139, 159, 416 A.2d 45 (1980) ). 

In evaluating whether good cause has been shown under the statute to modify or dissolve a final order, a court is to consider the non-exclusive list of factors set forth in Carfagno, 288 N.J. Super. at 435, 672 A.2d 751. These include, (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. 

This court made the important assertion reminding of “the danger that one of the parties will use the opportunity as a means to relitigate the FRO hearing.” 

How true? 

If defendant cannot meet this burden under Carfagno factors, then even without a transcript, reconstruction of the FRO record (transcripts missing) is not required. 

What do Carfagno facts mean? 

Carfagno #1:  is the victim willing to consent to dissolving the FRO? 

Carfagno #2:  Does Victim fear defendant-assailant and what will happen 

Carfagno #3:  Nature of relationship currently.  How many children and ages, for one thing? Continuing interaction between them needed concerning issues involving the children. 

Carfagno #4:  any violations or contempt convictions 

Carfagno #5:  Involvement with drug or alcohol abuse?  Had drug counseling?  Had alcohol counseling? 

Carfagno #6:  Other violent acts or FROs 

Carfagno #7:  Had anger management?  DV counseling?  Where?  With whom?  How many times?  When begin?  When end?  Any certificate of completion?  Any report from a psychologist? 

Carfagno #8:  Age and health of defendant-assailant 

 Carfagno #9   Good faith of victim in maintaining FRO.  No issue of just seeking leverage for a divorce.  No issue of seeking leverage for custody of children.  No ulterior motive. 

 Carfagno #10.  Any protective orders or FRO from another jurisdiction 

 Carfagno #11:  Other relevant factors.  Is Defendant moving?  When?  Signed lease/purchase contract?  When sign?  Have lawyer?  

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