Domestic Violence
- What is Domestic Violence?
- Who is a Victim of Domestic Violence?
- Who is a Perpetrator of Domestic Violence?
- What are the Legal Consequences of Domestic Violence?
-
N.J. Court Rule Rule 5:7A. DOMESTIC VIOLENCE: RESTRAINING ORDERS
(a) Application for Temporary Restraining Order. Except as provided in
paragraph (b) herein, an applicant for a temporary restraining order shall
appear before a judge personally to testify upon the record or by sworn
complaint submitted pursuant to N.J.S.A. 2C:25-12. If it appears that the
applicant is in danger of domestic violence, the judge shall, upon consideration
of the applicant's domestic violence affidavit, complaint or testimony, order
emergency relief including ex parte relief, in the nature of a temporary
restraining order as authorized by N.J.S.A. 2C:25-1 et seq.
(b) Issuance of Temporary Restraining Order by Electronic Communication.
A judge may issue a temporary restraining order upon sworn oral testimony of an
applicant who is not physically present. Such sworn oral testimony may be
communicated to the judge by telephone, radio or other means of electronic
communication. The judge or law enforcement officer assisting the applicant
shall contemporaneously record such sworn oral testimony by means of a
tape-recording device or stenographic machine if such are available; otherwise,
adequate long hand notes summarizing what is said shall be made by the judge.
Subsequent to taking the oath, the applicant must identify himself or herself,
specify the purpose of the request and disclose the basis of the application.
This sworn testimony shall be deemed to be an affidavit for the purposes of
issuance of a temporary restraining order. A temporary restraining order may
issue if the judge is satisfied that exigent circumstances exist sufficient to
excuse the failure of the applicant to appear personally and that sufficient
grounds for granting the application have been shown. Upon issuance of the
temporary restraining order, the judge shall memorialize the specific terms of
the order and shall direct the law enforcement officer assisting the applicant
to enter the judge's authorization verbatim on a form, or other appropriate
paper, designated the duplicate original temporary restraining order. This order
shall be deemed a temporary restraining order for the purpose of N.J.S.A.
2C:25-14. The judge shall direct the law enforcement officer assisting applicant
to print the judge's name on the temporary restraining order. The judge shall
also contemporaneously record factual determinations. Contemporaneously the
judge shall issue a written confirmatory order and shall enter thereon the exact
time of issuance of the duplicate order. In all other respects, the method of
issuance and contents of the order shall be that required by sub-section (a) of
this rule.
(c) Temporary Restraining Order. In court proceedings instituted under
the Prevention of Domestic Violence Act of 1990, the judge shall issue a
temporary restraining order when the applicant appears to be in danger of
domestic violence. The order may be issued ex parte when necessary to
protect the life, health, or well-being of a victim on whose behalf the relief
is sought.
(d) Final Restraining Order. A final order restraining a defendant shall
be issued only on a specific finding of domestic violence or on a stipulation by
a defendant to the commission of an act or acts of domestic violence as defined
by the statute.
(e) Procedure Upon Arrest Without a Warrant. Whenever a law enforcement
officer has effected an arrest without a warrant on a criminal complaint brought
for a violation otherwise defined as an offense under the Prevention of
Domestic Violence Act, N.J.S.A. 2C:25-1 et seq., bail may be
set and a complaint-warrant may be issued pursuant to the procedures prescribed
in R.
3:4-1(b).
(f) Venue in Domestic Violence Proceedings. Venue in domestic violence
actions shall be laid in the county where either of the parties resides, in the
county where the domestic violence offense took place, or in the county where
the victim of domestic violence is sheltered. If the action is not brought in a
county of residence, venue shall be transferred to a county of residence for the
final hearing unless the court orders the matter retained in the county where
the complaint is filed for good cause shown.
Note: Court Comment:
After a thorough review of positions taken by several knowledgeable and
interested groups, the Court has decided to adopt a Rule that accords with the
recommendation of the Court-appointed Statewide Domestic Violence Working Group.
That body exists to coordinate the response of the Judiciary to domestic
violence issues.
The Rule reflects the position recommended to the Court by the Statewide
Domestic Violence Working Group. The policy underlying this Rule was initially
embodied in the Domestic Violence Procedures Manual, which was jointly issued by
the Court and the Attorney General.
After that policy became operative, the Family Law Section of the New Jersey
State Bar Association requested reconsideration of the policy prohibiting
consent orders without a finding by the court, or an admission by the defendant,
of domestic violence. Subsequently, the Court asked for additional comment from
the Statewide Domestic Violence Working Group, the Family Division Practice
Committee, and other agencies and organizations interested in the subject. Legal
Services of New Jersey, the Governor's Advisory Council on Domestic Violence,
the Commission on Sex Discrimination in the Statutes, and the New Jersey
Coalition for Battered Women all took positions consistent with that of the
Statewide Domestic Violence Working Group.
The Family Law Section, the New Jersey State Bar Association, and the Women's
Rights Section of the New Jersey State Bar Association favored a policy
permitting the entry of consent orders to dispose of allegations of domestic
violence without conditioning entry on a requirement of a finding or stipulation
of domestic violence. The Court's Family Practice Committee also favored that
position. The Conference of Family Division Presiding Judges was divided on the
issue, a majority apparently favoring limited use of consent orders.
The Court reviewed numerous and detailed submissions and arguments on the issue
that had previously been considered by those various groups and thereafter made
available to the Court. Given the extensive debate and thorough airing of the
positions, the Court concluded that no further comment period or hearing would
be necessary and that the importance of the matter called for disposition now
rather than waiting for the probable effective date of the Rules cycle. The
Court has concluded that on balance the current prohibition on consent orders
not containing a finding or admission of domestic violence should continue.
Legislation on this matter is pending. Given the substantial policy
considerations involved, the Court will give considerable deference to a
legislative determination, if one is made.
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