restraining orders in domestic violence cases

11/8/11 10:46 AMRestraining Orders in Domestic Violence Cases

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Restraining Orders inDomestic Violence Cases

Kenneth Vercammen's Law office representsindividuals charged with criminal and serious trafficviolations throughout New Jersey.

RESTRAINING ORDERS in DOMESTIC VIOLENCE CASES

by Kenneth A. Vercammen, Esq.

New Jersey domestic violence laws are very strict. Ifthere are any signs of physical injuries the policemust arrest the abuser. Even without independentwitnesses and no physical injuries, police may arrestthe abuser. Domestic Violence is a crime under thelaw, and the police must respond to the calls ofvictims. The police are required to give the victiminformation about their rights and to help them.Among other things, police must write up a report. For example, O.J. Simpson would not have gottenaway with abuse in New Jersey. Police areautomatically required to arrest an abuser if they seeany evidence of abuse or assault. Even during theevening, your town Municipal Court or SuperiorCourt can issue a civil restraining order which is alegally enforceable document. The temporaryrestraining order will prohibit the defendant/abuserfrom harassing you or entering your residence.

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Unlike a criminal case where a person is providedwith lengthy due process, and if guilty receivesprobation and a monetary fine, a domestic violencehearing allows judges to issue far reaching orders. A domestic violence hearing is usually held withinonly ten (10) days of the filing of an ex partecomplaint and temporary restraining order. After ahearing , NJSA 2C:25-29 (b) allows the ChanceryDivision, Family Part Judge to grant substantialrelief to the complainant. Among the relief the Courtmay gives is:

(1) An order restraining the defendant fromsubjecting the victim to domestic violence, asdefined in this act.

(2) An order granting exclusive possession to theplaintiff of the residence or household regardless ofwhether the residence or household is jointly orsolely owned by the parties or jointly or solely leasedby the parties...

(3) An order providing for visitation...[ meaning thecomplainant obtains custody]

(4) An order requiring the defendant to pay to thevictim monetary compensation for losses suffered asa direct result of the act of domestic violence...

(6) An order restraining the defendant from enteringthe residence, property, school, or place ofemployment of the victim or of other family orhousehold members of the victim...

(7) An order restraining the defendant from makingany communication likely to cause annoyance oralarm...

(8) An order requiring that the defendant make orcontinue to make rent or mortgage payments on theresidence occupied by the victim if the defendant isfound to have a duty to support the victim or otherdependent household members...

(9) An order granting either party temporarypossession of specified personal property, such as anautomobile, checkbook, documentation of healthinsurance, any identification documents, a key, and

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other personal effects.

(10) An order awarding emergent monetary relief tothe victim and other dependents, if any. An ongoingobligation of support shall be determined at a laterdate pursuant to applicable law...Â²

(11) An Order awarding temporary custody of aminor child. The court shall presume that the bestinterests of the child shall be served by an award ofcustody to the non- abusive parent.

(12) An Order requiring that a law enforcementofficer accompany either party to the residence tosupervise the removal of personal belongings.

(13) An Order granting any other appropriate relieffor the plaintiff and minor children

(14) An Order that the defendant report to the intakeoffice of the Family Part for monitoring

(15) An Order prohibiting the defendant frompossessing any firearm or weapon

Caselaw protects victims. In Pepe v Pepe, 258 N.J.Super. 157 (Chan. Div. 1992) held that theconfidentiality provision of record keeping under theDomestic Violence act applies to the records kept onfile with the Clerk of the Superior Court.The courtheld that in determining whether or not a statutoryimposed confidential record should be made public,the court must consider whether the release of thedocuments will be harmful to the victim, whetheradverse publicity will be a factor and whether accessto court records will discourage the victim fromcoming forward.Despite the substantial financialburden and life restrictions (often referred to aspenalties), the burden of proof in a DOMESTICVIOLENCE hearing is only Â³by a preponderance ofevidence.Â² Hopefully, parties will put best interestsof children ahead of short term animosity. Financiallimitations often limit the family ability to becomeinvolved in lengthy divorce and custody battles.

A DOMESTIC VIOLENCE complaint can bewithdrawn. For additional information, speak with anattorney experienced in handling Domestic Violence



matters. The following is the NJ Court Rule onRestraining Orders; Court Rule 5:7A. DOMESTICVIOLENCE: RESTRAINING ORDERS (a)Application for Temporary Restraining Order exceptas provided in paragraph (b) herein, an applicant fora temporary restraining order shall appear before ajudge personally to testify upon the record or bysworn complaint submitted pursuant to N.J.S.A.2C:25-28. If it appears that the applicant is in dangerof domestic violence, the judge shall, uponconsideration of the applicants domestic violenceaffidavit, complaint or testimony, order emergencyrelief including ex parte relief, in the nature of atemporary restraining order as authorized by N.J.S.A.2C:25-17 et seq. (b) Issuance of TemporaryRestraining Order by Electronic Communication. Ajudge may issue a temporary restraining order uponsworn oral testimony of an applicant who is notphysically present. Such sworn oral testimony maybe communicated to the judge by telephone, radio orother means of electronic communication. The judgeor law enforcement officer assisting the applicantshall contemporaneously record such sworn oraltestimony by means of a tape-recording device orstenographic machine if such are available;otherwise, adequate long hand notes summarizingwhat is said shall be made by the judge. Subsequentto taking the oath, the applicant must identify himselfor herself, specify the purpose of the request anddisclose the basis of the application. This sworntestimony shall be deemed to be an affidavit for thepurposes of issuance of a temporary restrainingorder. A temporary restraining order may issue if thejudge is satisfied that exigent circumstances existsufficient to excuse the failure of the applicant toappear personally and that sufficient grounds forgranting the application have been shown. Uponissuance of the temporary restraining order, the judgeshall memorialize the specific terms of the order andshall direct the law enforcement officer assisting theapplicant to enter the judges authorization verbatimon a form, or other appropriate paper, designated theduplicate original temporary restraining order. Thisorder shall be deemed a temporary restraining orderfor the purpose of N.J.S.A. 2C:25-28. The judgeshall direct the law enforcement officer assistingapplicant to print the judges name on the temporary



restraining order. The judge shall alsocontemporaneously record factual determinations.Contemporaneously the judge shall issue a writtenconfirmatory order and shall enter thereon the exacttime of issuance of the duplicate order. In all otherrespects, the method of issuance and contents of theorder shall be that required by sub-section (a) of thisrule. (c) Temporary Restraining Order. In courtproceedings instituted under the Prevention ofDomestic Violence Act of 1990, the judge shall issuea temporary restraining order when the applicantappears to be in danger of domestic violence. Theorder may be issued ex parte when necessary toprotect the life, health, or well-being of a victim onwhose behalf the relief is sought. (d) FinalRestraining Order. A final order restraining adefendant shall be issued only on a specific findingof domestic violence or on a stipulation by adefendant to the commission of an act or acts ofdomestic violence as defined by the statute. (e)Procedure Upon Arrest Without a Warrant.Whenever a law enforcement officer has effected anarrest without a warrant on a criminal complaintbrought for a violation otherwise defined as anoffense under the Prevention of Domestic ViolenceAct, N.J.S.A. 2C:25-17 et seq., bail may be set and acomplaint-warrant may be issued pursuant to theprocedures prescribed in R 3:4-1(b). (f) Venue inDomestic Violence Proceedings. Venue in domesticviolence actions shall be laid in the county whereeither of the parties resides, in the county where thedomestic violence offense took place, or in thecounty where the victim of domestic violence issheltered. If the action is not brought in a county ofresidence, venue shall be transferred to a county ofresidence for the final hearing unless the court ordersthe matter retained in the county where the complaintis filed for good cause shown. The following is theNJ Statute on Restraining Orders and DomesticViolence Matters 2C:25-17. Short title 1. This actshall be known and may be cited as the "Preventionof Domestic Violence Act of 1991." 2C:25-18.Findings, declarations 2. The Legislature finds anddeclares that domestic violence is a serious crimeagainst society; that there are thousands of persons inthis State who are regularly beaten, tortured and insome cases even killed by their spouses or



cohabitants; that a significant number of women whoare assaulted are pregnant; that victims of domesticviolence come from all social and economicbackgrounds and ethnic groups; that there is apositive correlation between spousal abuse and childabuse; and that children, even when they are notthemselves physically assaulted, suffer deep andlasting emotional effects from exposure to domesticviolence. It is therefore, the intent of the Legislatureto assure the victims of domestic violence themaximum protection from abuse the law canprovide. The Legislature further finds and declaresthat the health and welfare of some of its mostvulnerable citizens, the elderly and disabled, are atrisk because of incidents of reported and unreporteddomestic violence, abuse and neglect which areknown to include acts which victimize the elderlyand disabled emotionally, psychologically,physically and financially; because of age,disabilities or infirmities, this group of citizensfrequently must rely on the aid and support of others;while the institutionalized elderly are protected underP.L. 1977, c.239 (C. 52:27G-1 et seq.), elderly anddisabled adults in non institutionalized or communitysettings may find themselves victimized by familymembers or others upon whom they feel compelledto depend. The Legislature further finds and declaresthat violence against the elderly and disabled,including criminal neglect of the elderly anddisabled under section 1 of P.L. 1989, c.23 (C.2C:24-8), must be recognized and addressed on anequal basis as violence against spouses and childrenin order to fulfill our responsibility as a society toprotect those who are less able to protect themselves.The Legislature further finds and declares that eventhough many of the existing criminal statutes areapplicable to acts of domestic violence, previoussocietal attitudes concerning domestic violence haveaffected the response of our law enforcement andjudicial systems, resulting in these acts receivingdifferent treatment from similar crimes when theyoccur in a domestic context. The Legislature findsthat battered adults presently experience substantialdifficulty in gaining access to protection from thejudicial system, particularly due to that systemsinability to generate a prompt response in anemergency situation. It is the intent of the



Legislature to stress that the primary duty of a lawenforcement officer when responding to a domesticviolence call is to enforce the laws allegedly violatedand to protect the victim. Further, it is theresponsibility of the courts to protect victims ofviolence that occurs in a family or family-like settingby providing access to both emergent and long-termcivil and criminal remedies and sanctions, and byordering those remedies and sanctions that areavailable to assure the safety of the victims and thepublic. To that end, the Legislature encourages thetraining of all police and judicial personnel in theprocedures and enforcement of this act, and aboutthe social and psychological context in whichdomestic violence occurs; and it further encouragesthe broad application of the remedies available underthis act in the civil and criminal courts of this State.It is further intended that the official response todomestic violence shall communicate the attitudethat violent behavior will not be excused or tolerated,and shall make clear the fact that the existingcriminal laws and civil remedies created under thisact will be enforced without regard to the fact thatthe violence grows out of a domestic situation.2C:25-21.1 Rules, regulations concerning weaponsprohibitions and domestic violence. The AttorneyGeneral may adopt, pursuant to the "AdministrativeProcedure Act," P.L. 1968, c.410 (C. 52:14B-1 etseq.), rules and regulations necessary andappropriate to implement this act.

2C:25-22. Immunity from civil liability A lawenforcement officer or a member of a domestic crisisteam or any person who, in good faith, reports apossible incident of domestic violence to the policeshall not be held liable in any civil action brought byany party for an arrest based on probable cause,enforcement in good faith of a court order, or anyother act or omission in good faith under this act.

2C:25-23. Dissemination of notice to victim ofdomestic violence 7. A law enforcement officer shalldisseminate and explain to the victim the followingnotice, which shall be written in both English andSpanish: "You have the right to go to court to get anorder called a temporary restraining order, alsocalled a TRO, which may protect you from more



abuse by your attacker. The officer who handed youthis card can tell you how to get a TRO. The kindsof things a judge can order in a TRO may include:(1) That your attacker is temporarily forbidden fromentering the home you live in;

(2) That your attacker is temporarily forbidden fromhaving contact with you or your relatives;

(3) That your attacker is temporarily forbidden frombothering you at work;

(4) That your attacker has to pay temporary childsupport or support for you;

(5) That you be given temporary custody of yourchildren;

(6) That your attacker pay you back any money youhave to spend for medical treatment or repairsbecause of the violence. There are other things thecourt can order, and the court clerk will explain theprocedure to you and will help you fill out the papersfor a TRO.

You also have the right to file a criminal complaintagainst your attacker. The police officer who gaveyou this paper will tell you how to file a criminalcomplaint. On weekends, holidays and other timeswhen the courts are closed, you still have a right toget a TRO. The police officer who gave you thispaper can help you get in touch with a judge whocan give you a TRO." 2C:25-24 Domestic violenceoffense reports. 8.

a. It shall be the duty of a law enforcement officerwho responds to a domestic violence call tocomplete a domestic violence offense report. Allinformation contained in the domestic violenceoffense report shall be forwarded to the appropriatecounty bureau of identification and to the Statebureau of records and identification in the Divisionof State Police in the Department of Law and PublicSafety. A copy of the domestic violence offensereport shall be forwarded to the municipal courtwhere the offense was committed unless the case hasbeen transferred to the Superior Court. b. Thedomestic violence offense report shall be on a form



prescribed by the supervisor of the State bureau ofrecords and identification which shall include, butnot be limited to, the following information:

(1)The relationship of the parties;

(2)The sex of the parties;

(3)The time and date of the incident;

(4)The number of domestic violence callsinvestigated;

(5)Whether children were involved, or whether thealleged act of domestic violence had been committedin the presence of children;

(6)The type and extent of abuse;

(7)The number and type of weapons involved;

(8)The action taken by the law enforcement officer;

(9)The existence of any prior court orders issuedpursuant to this act concerning the parties;

(10) The number of domestic violence calls alleginga violation of a domestic violence restraining order;

(11) The number of arrests for a violation of adomestic violence order; and

(12) Any other data that may be necessary for acomplete analysis of all circumstances leading to thealleged incident of domestic violence. c. It shall bethe duty of the Superintendent of the State Policewith the assistance of the Division of Systems andCommunications in the Department of Law andPublic Safety to compile and report annually to theGovernor, the Legislature and the Advisory Councilon Domestic Violence on the tabulated data from thedomestic violence offense reports, classified bycounty 2C:25-25. Criminal complaints; proceedings9. The court in a criminal complaint arising from adomestic violence incident: a. Shall not dismiss anycharge or delay disposition of a case because ofconcurrent dissolution of a marriage, other civilproceedings, or because the victim has left the



residence to avoid further incidents of domesticviolence; b. Shall not require proof that either partyis seeking a dissolution of a marriage prior toinstitution of criminal proceedings; c. Shall waiveany requirement that the victims location bedisclosed to any person.

2C:25-26 Release of defendant before trial;conditions. 10. a. When a defendant charged with acrime or offense involving domestic violence isreleased from custody before trial on bail or personalrecognizance, the court authorizing the release mayas a condition of release issue an order prohibitingthe defendant from having any contact with thevictim including, but not limited to, restraining thedefendant from entering the victims residence, placeof employment or business, or school, and fromharassing or stalking the victim or victims relativesin any way. The court may enter an order prohibitingthe defendant from possessing any firearm or otherweapon enumerated in subsection r. of N.J.S. 2C:39-1 and ordering the search for and seizure of any suchweapon at any location where the judge hasreasonable cause to believe the weapon is located.The judge shall state with specificity the reasons forand scope of the search and seizure authorized by theorder. b. The written court order releasing thedefendant shall contain the courts directivesspecifically restricting the defendants ability to havecontact with the victim or the victims friends, co-workers or relatives. The clerk of the court or otherperson designated by the court shall provide a copyof this order to the victim forthwith. c. The victimslocation shall remain confidential and shall notappear on any documents or records to which thedefendant has access. d. Before bail is set, thedefendants prior record shall be considered by thecourt. The court shall also conduct a search of thedomestic violence central registry. Bail shall be setas soon as it is feasible, but in all cases within 24hours of arrest. e. Once bail is set it shall not bereduced without prior notice to the county prosecutorand the victim. Bail shall not be reduced by a judgeother than the judge who originally ordered bail,unless the reasons for the amount of the original bailare available to the judge who reduces the bail andare set forth in the record. f. A victim shall not be



prohibited from applying for, and a court shall not beprohibited from issuing, temporary restraintspursuant to this act because the victim has chargedany person with commission of a criminal act.

2C:25-26.1. Notification of victim of release ofdefendant 1. Notwithstanding any other provision oflaw to the contrary, whenever a defendant chargedwith a crime or an offense involving domesticviolence is released from custody the prosecutingagency shall notify the victim.

2C:25-27 Conditions of sentencing of defendantfound guilty of domestic violence. 11. When adefendant is found guilty of a crime or offenseinvolving domestic violence and a condition ofsentence restricts the defendants ability to havecontact with the victim, that condition shall berecorded in an order of the court and a written copyof that order shall be provided to the victim by theclerk of the court or other person designated by thecourt. In addition to restricting a defendants ability tohave contact with the victim, the court may requirethe defendant to receive professional counselingfrom either a private source or a source appointed bythe court, and if the court so orders, the court shallrequire the defendant to provide documentation ofattendance at the professional counseling. In anycase where the court order contains a requirementthat the defendant receive professional counseling,no application by the defendant to dissolve therestraining order shall be granted unless, in additionto any other provisions required by law or conditionsordered by the court, the defendant has completed allrequired attendance at such counseling.

2C:25-28 Filing complaint alleging domesticviolence in Family Part; proceedings. 12. a. A victimmay file a complaint alleging the commission of anact of domestic violence with the Family Part of theChancery Division of the Superior Court inconformity with the Rules of Court. The court shallnot dismiss any complaint or delay disposition of acase because the victim has left the residence toavoid further incidents of domestic violence. Filing acomplaint pursuant to this section shall not preventthe filing of a criminal complaint for the same act.



On weekends, holidays and other times when thecourt is closed, a victim may file a complaint beforea judge of the Family Part of the Chancery Divisionof the Superior Court or a municipal court judge whoshall be assigned to accept complaints and issueemergency, ex parte relief in the form of temporaryrestraining orders pursuant to this act. A plaintiffmay apply for relief under this section in a courthaving jurisdiction over the place where the allegedact of domestic violence occurred, where thedefendant resides, or where the plaintiff resides or issheltered, and the court shall follow the sameprocedures applicable to other emergencyapplications. Criminal complaints filed pursuant tothis act shall be investigated and prosecuted in thejurisdiction where the offense is alleged to haveoccurred. Contempt complaints filed pursuant toN.J.S. 2C:29-9 shall be prosecuted in the countywhere the contempt is alleged to have beencommitted and a copy of the contempt complaintshall be forwarded to the court that issued the orderalleged to have been violated. b. The court shallwaive any requirement that the petitioners place ofresidence appear on the complaint. c. The clerk ofthe court, or other person designated by the court,shall assist the parties in completing any formsnecessary for the filing of a summons, complaint,answer or other pleading. d. Summons and complaintforms shall be readily available at the clerks office,at the municipal courts and at municipal and Statepolice stations. e. As soon as the domestic violencecomplaint is filed, both the victim and the abusershall be advised of any programs or servicesavailable for advice and counseling. f. A plaintiffmay seek emergency, ex parte relief in the nature ofa temporary restraining order. A municipal courtjudge or a judge of the Family Part of the ChanceryDivision of the Superior Court may enter an ex parteorder when necessary to protect the life, health orwell-being of a victim on whose behalf the relief issought. g. If it appears that the plaintiff is in dangerof domestic violence, the judge shall, uponconsideration of the plaintiffs domestic violencecomplaint, order emergency ex parte relief, in thenature of a temporary restraining order. A decisionshall be made by the judge regarding the emergencyrelief forthwith. h. A judge may issue a temporary



restraining order upon sworn testimony or complaintof an applicant who is not physically present,pursuant to court rules, or by a person whorepresents a person who is physically or mentallyincapable of filing personally. A temporaryrestraining order may be issued if the judge issatisfied that exigent circumstances exist sufficient toexcuse the failure of the applicant to appearpersonally and that sufficient grounds for grantingthe application have been shown. i. An order foremergency, ex parte relief shall be granted upongood cause shown and shall remain in effect until ajudge of the Family Part issues a further order. Anytemporary order hereunder is immediately appealablefor a plenary hearing de novo not on the recordbefore any judge of the Family Part of the county inwhich the plaintiff resides or is sheltered if that judgeissued the temporary order or has access to thereasons for the issuance of the temporary order andsets forth in the record the reasons for themodification or dissolution. The denial of atemporary restraining order by a municipal courtjudge and subsequent administrative dismissal of thecomplaint shall not bar the victim from refiling acomplaint in the Family Part based on the sameincident and receiving an emergency, ex partehearing de novo not on the record before a FamilyPart judge, and every denial of relief by a municipalcourt judge shall so state. j. Emergency relief mayinclude forbidding the defendant from returning tothe scene of the domestic violence, forbidding thedefendant from possessing any firearm or otherweapon enumerated in subsection r. of N.J.S. 2C:39-1, ordering the search for and seizure of any suchweapon at any location where the judge hasreasonable cause to believe the weapon is locatedand the seizure of any firearms purchaseridentification card or permit to purchase a handgunissued to the defendant and any other appropriaterelief. The judge shall state with specificity thereasons for and scope of the search and seizureauthorized by the order. The provisions of thissubsection prohibiting a defendant from possessing afirearm or other weapon shall not apply to any lawenforcement officer while actually on duty, or to anymember of the Armed Forces of the United States ormember of the National Guard while actually on



duty or traveling to or from an authorized place ofduty. k. The judge may permit the defendant toreturn to the scene of the domestic violence to pickup personal belongings and effects but shall, in theorder granting relief, restrict the time and duration ofsuch permission and provide for police supervisionof such visit. l. An order granting emergency relief,together with the complaint or complaints, shallimmediately be forwarded to the appropriate lawenforcement agency for service on the defendant,and to the police of the municipality in which theplaintiff resides or is sheltered, and shallimmediately be served upon the defendant by thepolice, except that an order issued during regularcourt hours may be forwarded to the sheriff forimmediate service upon the defendant in accordancewith the Rules of Court. If personal service cannotbe effected upon the defendant, the court may orderother appropriate substituted service. At no time shallthe plaintiff be asked or required to serve any orderon the defendant. m.(Deleted by amendment, P.L.1994, c.94.) n. Notice of temporary restraining ordersissued pursuant to this section shall be sent by theclerk of the court or other person designated by thecourt to the appropriate chiefs of police, members ofthe State Police and any other appropriate lawenforcement agency or court. o.(Deleted byamendment, P.L. 1994, c.94.) p. Any temporary orpermanent restraining order issued pursuant to thisact shall be in effect throughout the State, and shallbe enforced by all law enforcement officers. q. Priorto the issuance of any temporary or permanentrestraining order issued pursuant to this section, thecourt shall order that a search be made of thedomestic violence central registry with regard to thedefendants record.

2C:25-28.1. In-house restraining order prohibited 2.Notwithstanding any provision of P.L. 1991, c.261(C. 2C:25-17 et seq.) to the contrary, no order issuedby the Family Part of the Chancery Division of theSuperior Court pursuant to section 12 or section 13of P.L. 1991, c.261 (C. 2C:25-28 or 2C:25-29)regarding emergency, temporary or final relief shallinclude an in-house restraining order which permitsthe victim and the defendant to occupy the samepremises but limits the defendants use of that



premises.

2C:25-29 Hearing procedure; relief. 13. a. A hearingshall be held in the Family Part of the ChanceryDivision of the Superior Court within 10 days of thefiling of a complaint pursuant to section 12 of P.L.1991, c.261 (C. 2C:25-28) in the county where theex parte restraints were ordered, unless good cause isshown for the hearing to be held elsewhere. A copyof the complaint shall be served on the defendant inconformity with the Rules of Court. If a criminalcomplaint arising out of the same incident which isthe subject matter of a complaint brought under P.L.1981, c.426 (C. 2C:25-1 et seq.) or P.L. 1991, c.261(C. 2C:25-17 et seq.) has been filed, testimony givenby the plaintiff or defendant in the domestic violencematter shall not be used in the simultaneous orsubsequent criminal proceeding against thedefendant, other than domestic violence contemptmatters and where it would otherwise be admissiblehearsay under the rules of evidence that governwhere a party is unavailable. At the hearing thestandard for proving the allegations in the complaintshall be by a preponderance of the evidence. Thecourt shall consider but not be limited to thefollowing factors:

(1)The previous history of domestic violencebetween the plaintiff and defendant, includingthreats, harassment and physical abuse;

(2)The existence of immediate danger to person orproperty;

(3)The financial circumstances of the plaintiff anddefendant;

(4)The best interests of the victim and any child;

(5)In determining custody and parenting time theprotection of the victims safety; and

(6)The existence of a verifiable order of protectionfrom another jurisdiction. An order issued underthis act shall only restrain or provide damagespayable from a person against whom a complaint hasbeen filed under this act and only after a finding oran admission is made that an act of domestic



violence was committed by that person. The issue ofwhether or not a violation of this act occurred,including an act of contempt under this act, shall notbe subject to mediation or negotiation in any form.In addition, where a temporary or final order hasbeen issued pursuant to this act, no party shall beordered to participate in mediation on the issue ofcustody or parenting time.

b. In proceedings in which complaints for restrainingorders have been filed, the court shall grant anyrelief necessary to prevent further abuse. In additionto any other provisions, any restraining order issuedby the court shall bar the defendant from purchasing,owning, possessing or controlling a firearm and fromreceiving or retaining a firearms purchaseridentification card or permit to purchase a handgunpursuant to N.J.S. 2C:58-3 during the period inwhich the restraining order is in effect or two yearswhichever is greater, except that this provision shallnot apply to any law enforcement officer whileactually on duty, or to any member of the ArmedForces of the United States or member of theNational Guard while actually on duty or traveling toor from an authorized place of duty. At the hearingthe judge of the Family Part of the ChanceryDivision of the Superior Court may issue an ordergranting any or all of the following relief:

(1) An order restraining the defendant fromsubjecting the victim to domestic violence, asdefined in this act.

(2) An order granting exclusive possession to theplaintiff of the residence or household regardless ofwhether the residence or household is jointly orsolely owned by the parties or jointly or solely leasedby the parties. This order shall not in any manneraffect title or interest to any real property held byeither party or both jointly. If it is not possible forthe victim to remain in the residence, the court mayorder the defendant to pay the victims rent at aresidence other than the one previously shared by theparties if the defendant is found to have a duty tosupport the victim and the victim requires alternativehousing.

(3) An order providing for parenting time. The order



shall protect the safety and well-being of theplaintiff and minor children and shall specify theplace and frequency of parenting time. Parentingtime arrangements shall not compromise any otherremedy provided by the court by requiring orencouraging contact between the plaintiff anddefendant. Orders for parenting time may include adesignation of a place of parenting time away fromthe plaintiff, the participation of a third party, orsupervised parenting time. (a) The court shallconsider a request by a custodial parent who hasbeen subjected to domestic violence by a person withparenting time rights to a child in the parents custodyfor an investigation or evaluation by the appropriateagency to assess the risk of harm to the child prior tothe entry of a parenting time order. Any denial ofsuch a request must be on the record and shall onlybe made if the judge finds the request to be arbitraryor capricious. (b) The court shall consider suspensionof the parenting time order and hold an emergencyhearing upon an application made by the plaintiffcertifying under oath that the defendants access tothe child pursuant to the parenting time order hasthreatened the safety and well-being of the child.

(4) An order requiring the defendant to pay to thevictim monetary compensation for losses suffered asa direct result of the act of domestic violence. Theorder may require the defendant to pay the victimdirectly, to reimburse the Victims of CrimeCompensation Board for any and all compensationpaid by the Victims of Crime Compensation Boarddirectly to or on behalf of the victim, and mayrequire that the defendant reimburse any parties thatmay have compensated the victim, as the court maydetermine. Compensatory losses shall include, butnot be limited to, loss of earnings or other support,including child or spousal support, out-of-pocketlosses for injuries sustained, cost of repair orreplacement of real or personal property damaged ordestroyed or taken by the defendant, cost ofcounseling for the victim, moving or other travelexpenses, reasonable attorneys fees, court costs, andcompensation for pain and suffering. Whereappropriate, punitive damages may be awarded inaddition to compensatory damages.



(5) An order requiring the defendant to receiveprofessional domestic violence counseling fromeither a private source or a source appointed by thecourt and, in that event, requiring the defendant toprovide the court at specified intervals withdocumentation of attendance at the professionalcounseling. The court may order the defendant topay for the professional counseling. No applicationby the defendant to dissolve a final order whichcontains a requirement for attendance at professionalcounseling pursuant to this paragraph shall begranted by the court unless, in addition to any otherprovisions required by law or conditions ordered bythe court, the defendant has completed all requiredattendance at such counseling.

(6) An order restraining the defendant from enteringthe residence, property, school, or place ofemployment of the victim or of other family orhousehold members of the victim and requiring thedefendant to stay away from any specified place thatis named in the order and is frequented regularly bythe victim or other family or household members.

(7) An order restraining the defendant from makingcontact with the plaintiff or others, including anorder forbidding the defendant from personally orthrough an agent initiating any communication likelyto cause annoyance or alarm including, but notlimited to, personal, written, or telephone contactwith the victim or other family members, or theiremployers, employees, or fellow workers, or otherswith whom communication would be likely to causeannoyance or alarm to the victim.

(8) An order requiring that the defendant make orcontinue to make rent or mortgage payments on theresidence occupied by the victim if the defendant isfound to have a duty to support the victim or otherdependent household members; provided that thisissue has not been resolved or is not being litigatedbetween the parties in another action.

(9) An order granting either party temporarypossession of specified personal property, such as anautomobile, checkbook, documentation of healthinsurance, an identification document, a key, andother personal effects.



(10) An order awarding emergency monetary relief,including emergency support for minor children, tothe victim and other dependents, if any. An ongoingobligation of support shall be determined at a laterdate pursuant to applicable law.

(11) An order awarding temporary custody of aminor child. The court shall presume that the bestinterests of the child are served by an award ofcustody to the non-abusive parent.

(12) An order requiring that a law enforcementofficer accompany either party to the residence orany shared business premises to supervise theremoval of personal belongings in order to ensurethe personal safety of the plaintiff when a restrainingorder has been issued. This order shall be restrictedin duration.

(13) (Deleted by amendment, P.L. 1995, c.242).

(14) An order granting any other appropriate relieffor the plaintiff and dependent children, providedthat the plaintiff consents to such relief, includingrelief requested by the plaintiff at the final hearing,whether or not the plaintiff requested such relief atthe time of the granting of the initial emergencyorder.

(15) An order that requires that the defendant reportto the intake unit of the Family Part of the ChanceryDivision of the Superior Court for monitoring of anyother provision of the order.

(16) In addition to the order required by thissubsection prohibiting the defendant from possessingany firearm, the court may also issue an orderprohibiting the defendant from possessing any otherweapon enumerated in subsection r. of N.J.S. 2C:39-1 and ordering the search for and seizure of anyfirearm or other weapon at any location where thejudge has reasonable cause to believe the weapon islocated. The judge shall state with specificity thereasons for and scope of the search and seizureauthorized by the order.

(17) An order prohibiting the defendant from



stalking or following, or threatening to harm, to stalkor to follow, the complainant or any other personnamed in the order in a manner that, taken in thecontext of past actions of the defendant, would putthe complainant in reasonable fear that the defendantwould cause the death or injury of the complainantor any other person. Behavior prohibited under thisact includes, but is not limited to, behaviorprohibited under the provisions of P.L. 1992, c.209(C. 2C:12-10).

(18) An order requiring the defendant to undergo apsychiatric evaluation. c. Notice of orders issuedpursuant to this section shall be sent by the clerk ofthe Family Part of the Chancery Division of theSuperior Court or other person designated by thecourt to the appropriate chiefs of police, members ofthe State Police and any other appropriate lawenforcement agency. d. Upon good cause shown, anyfinal order may be dissolved or modified uponapplication to the Family Part of the ChanceryDivision of the Superior Court, but only if the judgewho dissolves or modifies the order is the samejudge who entered the order, or has available acomplete record of the hearing or hearings on whichthe order was based. e. Prior to the issuance of anyorder pursuant to this section, the court shall orderthat a search be made of the domestic violencecentral registry. 2C:25-29.1 Civil penalty for certaindomestic violence offenders. 1. In addition to anyother disposition, any person found by the court in afinal hearing pursuant to section 13 of P.L. 1991,c.261 (C. 2C:25-29) to have committed an act ofdomestic violence shall be ordered by the court topay a civil penalty of at least $50, but not to exceed$500. In imposing this civil penalty, the court shalltake into consideration the nature and degree ofinjury suffered by the victim. The court may waivethe penalty in cases of extreme financial hardship.2C:25-29.2 Collection, distribution of civil penaltiescollected. 2. All civil penalties imposed pursuant tosection 1 of P.L. 2001, c.195 (C. 2C:25-29.1) shallbe collected as provided by the Rules of Court. Allmoneys collected shall be forwarded to the DomesticViolence Victims Fund established pursuant tosection 3 of P.L. 2001, c.195 (C.30:14-15). 2C:25-29.3 Rules of Court. 4. The Supreme Court may



promulgate Rules of Court to effectuate the purposesof this act. 2C:25-29.4 Surcharge for domesticviolence offender to fund grants. 50. In addition toany other penalty, fine or charge imposed pursuantto law, a person convicted of an act of domesticviolence, as that term is defined by subsection a. ofsection 3 of P.L. 1991, c.261 (C. 2C:25-19), shall besubject to a surcharge in the amount of $100 payableto the Treasurer of the State of New Jersey for useby the Department of Human Services to fund grantsfor domestic violence prevention, training andassessment.

2C:25-30. Violations, penalties 14. Except asprovided below, a violation by the defendant of anorder issued pursuant to this act shall constitute anoffense under subsection b. of N.J.S. 2C:29-9 andeach order shall so state. All contempt proceedingsconducted pursuant to N.J.S. 2C:29-9 involvingdomestic violence orders, other than thoseconstituting indictable offenses, shall be heard by theFamily Part of the Chancery Division of the SuperiorCourt. All contempt proceedings brought pursuant toP.L. 1991, c.261 (C. 2C:25-17 et seq.) shall besubject to any rules or guidelines established by theSupreme Court to guarantee the prompt dispositionof criminal matters. Additionally, andnotwithstanding the term of imprisonment providedin N.J.S. 2C:43-8, any person convicted of a secondor subsequent non indictable domestic violencecontempt offense shall serve a minimum term of notless than 30 days. Orders entered pursuant toparagraphs (3), (4), (5), (8) and (9) of subsection b.of section 13 of this act shall be excluded fromenforcement under subsection b. of N.J.S. 2C:29-9;however, violations of these orders may be enforcedin a civil or criminal action initiated by the plaintiffor by the court, on its own motion, pursuant toapplicable court rules.

2C:25-31 Contempt, law enforcement procedures.15. Where a law enforcement officer finds that thereis probable cause that a defendant has committedcontempt of an order entered pursuant to theprovisions of P.L. 1981, c.426 (C. 2C:25-1 et seq.)or P.L. 1991, c.261 (C. 2C:25-17 et seq.), thedefendant shall be arrested and taken into custody by



a law enforcement officer. The law enforcementofficer shall follow these procedures: The lawenforcement officer shall transport the defendant tothe police station or such other place as the lawenforcement officer shall determine is proper. Thelaw enforcement officer shall: a. Conduct a search ofthe domestic violence central registry and sign acomplaint concerning the incident which gave rise tothe contempt charge; b. Telephone or communicatein person or by facsimile with the appropriate judgeassigned pursuant to this act and request bail be seton the contempt charge; c. If the defendant is unableto meet the bail set, take the necessary steps to insurethat the defendant shall be incarcerated at policeheadquarters or at the county jail; and d. Duringregular court hours, the defendant shall have bail setby a Superior Court judge that day. On weekends,holidays and other times when the court is closed,the officer shall arrange to have the clerk of theFamily Part notified on the next working day of thenew complaint, the amount of bail, the defendantswhereabouts and all other necessary details. Inaddition, if a municipal court judge set the bail, thearresting officer shall notify the clerk of thatmunicipal court of this information.

2C:25-32. Alleged contempt, complainantsprocedure 16. Where a person alleges that adefendant has committed contempt of an orderentered pursuant to the provisions of P.L. 1981,c.426 (C. 2C:25-1 et seq.) or P.L. 1991, c.261, butwhere a law enforcement officer has found that thereis not probable cause sufficient to arrest thedefendant, the law enforcement officer shall advisethe complainant of the procedure for completing andsigning a criminal complaint alleging a violation ofN.J.S. 2C:29-9. During regular court hours, theassistance of the clerk of the Family Part of theChancery Division of the Superior Court shall bemade available to such complainants. Nothing in thissection shall be construed to prevent the court fromgranting any other emergency relief it deemsnecessary.

2C:25-33 Records of applications for relief; reports;confidentiality; forms. 17. a. The AdministrativeOffice of the Courts shall, with the assistance of the



Attorney General and the county prosecutors,maintain a uniform record of all applications forrelief pursuant to sections 9, 10, 11, 12, and 13 ofP.L. 1991, c.261 (C. 2C:25-25, C. 2C:25-26, C.2C:25-27, C. 2C:25-28, and C. 2C:25-29). Therecord shall include the following information:(1)The number of criminal and civil complaints filedin all municipal courts and the Superior Court;(2)The sex of the parties; (3)The relationship of theparties; (4)The relief sought or the offense charged,or both; (5)The nature of the relief granted or penaltyimposed, or both, including, but not limited to, thefollowing: (a)custody; (b)child support; (c)thespecific restraints ordered; (d)any requirements orconditions imposed pursuant to paragraphs (1)through (18) of subsection b. of section 13 of P.L.1991, c.261 (C. 2C:25-29), including but not limitedto professional counseling or psychiatric evaluations;(6)The effective date of each order issued; and (7)Inthe case of a civil action in which no permanentrestraints are entered, or in the case of a criminalmatter that does not proceed to trial, the reason orreasons for the disposition. It shall be the duty of theDirector of the Administrative Office of the Courtsto compile and report annually to the Governor, theLegislature and the Advisory Council on DomesticViolence on the data tabulated from the records ofthese orders. All records maintained pursuant to thisact shall be confidential and shall not be madeavailable to any individual or institution except asotherwise provided by law. b. In addition to theprovisions of subsection a. of this section, theAdministrative Office of the Courts shall, with theassistance of the Attorney General and the countyprosecutors, create and maintain uniform forms torecord sentencing, bail conditions and dismissals.The forms shall be used by the Superior Court andby every municipal court to record any order in acase brought pursuant to this act. Such recordingshall include but not be limited to, the specificrestraints ordered, any requirements or conditionsimposed on the defendant, and any conditions ofbail.

2C:25-34 Domestic violence restraining orders,central registry. 1. The Administrative Office of theCourts shall establish and maintain a central registry



of all persons who have had domestic violencerestraining orders entered against them, all personswho have been charged with a crime or offenseinvolving domestic violence, and all persons whohave been charged with a violation of a court orderinvolving domestic violence. All records madepursuant to this section shall be kept confidentialand shall be released only to: a. A public agencyauthorized to investigate a report of domesticviolence; b. A police or other law enforcementagency investigating a report of domestic violence,or conducting a background investigation involvinga persons application for a firearm permit oremployment as a police or law enforcement officeror for any other purpose authorized by law or theSupreme Court of the State of New Jersey; c. Acourt, upon its finding that access to such recordsmay be necessary for determination of an issuebefore the court; or d. A surrogate, in that personsofficial capacity as deputy clerk of the SuperiorCourt, in order to prepare documents that may benecessary for a court to determine an issue in anadoption proceeding. Any individual, agency,surrogate or court which receives from theAdministrative Office of the Courts the recordsreferred to in this section shall keep such recordsand reports, or parts thereof, confidential and shallnot disseminate or disclose such records and reports,or parts thereof; provided that nothing in this sectionshall prohibit a receiving individual, agency,surrogate or court from disclosing records andreports, or parts thereof, in a manner consistent withand in furtherance of the purpose for which therecords and reports or parts thereof were received.Any individual who disseminates or discloses arecord or report, or parts thereof, of the centralregistry, for a purpose other than investigating areport of domestic violence, conducting abackground investigation involving a personsapplication for a firearm permit or employment as apolice or law enforcement officer, making adetermination of an issue before the court, or for anyother purpose other than that which is authorized bylaw or the Supreme Court of the State of NewJersey, shall be guilty of a crime of the fourthdegree.



2C:25-35 Rules of Court concerning central registryfor domestic violence. 7. The Supreme Court of NewJersey may adopt Rules of Court appropriate ornecessary to effectuate the purposes of this act.

PORTIONS OF THIS ARTICLE WERE PUBLISHED BY MR. VERCAMMEN IN THENEW JERSEY LAWYER, THE STATESLARGEST LEGAL PUBLICATION. KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEYAT LAW 2053 Woodbridge Ave. Edison, NJ 08817(Phone) 732-572-0500 (Fax) 732-572-0030

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell thejudge what you did that makes you guilty of theparticular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and CourtCosts.

3. If you are on Probation, you will have to submit torandom drug and urine testing. If you violateProbation, you often go to jail.

4. In indictable matters, you will be required toprovide a DNA sample, which could be used by lawenforcement for the investigation of criminal activity,and pay for the cost of testing.

5. You must pay restitution if the court finds there isa victim who has suffered a loss and if the courtfinds that you are able or will be able in the future topay restitution.

6. If you are a public office holder or employee, youcan be required to forfeit your office or job by virtueof your plea of guilty.

7. If you are not a United States citizen or national,you may be deported by virtue of your plea of guilty.



8. You must wait 5-10 years to expunge a firstoffense. 2C:52-3

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of$500-$1,000, and lose your drivers license for 6months - 2years. You must pay a Law EnforcementOfficers Training and Equipment Fund penalty of$30.

11. You may be required to do Community Service.

12. You must pay a minimum Violent CrimesCompensation Board assessment of $50 ($100minimum if you are convicted of a crime ofviolence) for each count to which you plead guilty.

13. You must pay a $75 Safe Neighborhood ServicesFund assessment for each conviction.

14. If you are being sentenced to probation, you mustpay a fee of up to $25 per month for the term ofprobation.

15. You lose the presumption against incarceration infuture cases. 2C:44-1

16. You may lose your right to vote.

The defense of a person charged with a criminaloffense is not impossible. There are a number ofviable defenses and arguments which can be pursuedto achieve a successful result. Advocacy,commitment, and persistence are essential todefending a client accused of a criminal offense.

Jail for Crimes and Disorderly Conduct:

If someone pleads Guilty or is found Guilty of acriminal offense, the following is the statutoryPrison/Jail terms.

NJSA 2C: 43-8 (1) In the case of a crime of the firstdegree, for a specific term of years which shall befixed by the court and shall be between 10 years and20 years;

(2) In the case of a crime of the second degree, for a



specific term of years which shall be fixed by thecourt and shall be between five years and 10 years;

(3) In the case of a crime of the third degree, for aspecific term of years which shall be fixed by thecourt and shall be between three years and fiveyears;

(4) In the case of a crime of the fourth degree, for aspecific term which shall be fixed by the court andshall not exceed 18 months.

2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has beenconvicted of an offense may be sentenced to pay afine, to make restitution, or both, such fine not toexceed:

a. (1) $200,000.00 when the conviction is of a crimeof the first degree;

(2) $150,000.00 when the conviction is of a crime ofthe second degree;

b. (1) $15,000.00 when the conviction is of a crimeof the third degree;

(2) $10,000.00 when the conviction is of a crime ofthe fourth degree;

c. $1,000.00, when the conviction is of a disorderlypersons offense;

d. $500.00, when the conviction is of a pettydisorderly persons offense;

If facing any criminal charge, retain an experiencedattorney immediately to determine you rights andobligations to the court. Current criminal chargeresearched by Kenneth Vercammen, Esq. 732-572-0500

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Kenneth Vercammens Law office represents individuals chargedwith criminal, drug offenses, and serious traffic violationsthroughout New Jersey. Our office helps people with traffic/municipal court tickets including drivers charged with Driving WhileIntoxicated, Refusal and Driving While Suspended.

Kenneth Vercammen was the NJ State Bar Municipal Court Attorneyof the Year and past president of the Middlesex County MunicipalProsecutors Association.

Criminal and Motor vehicle violations can cost you. You will have topay fines in court or receive points on your drivers license. Anaccumulation of too many points, or certain moving violations mayrequire you to pay expensive surcharges to the N.J. DMV [Divisionof Motor Vehicles] or have your license suspended. Dont give up!The Law Office of Kenneth Vercammen can provide experiencedattorney representation for criminal motor vehicle violations.

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