Law Lessons from D.M.N. V. D.R.G., App. Div., A-4906-07T3, November 20, 2009:

Relief from an FRO is governed by N.J.S.A. 2C:25-29, which provides as follows:

Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.

In Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998), the Appellate Division adopted the factors enumerated by Judge Dilts in Carfagno v. Carfagno, 288 N.J. Super. 424, 434-45 (Ch. Div. 1995). Judge Dilts wrote that

courts should consider a number of factors when determining whether good cause has been shown that the final restraining order should be dissolved upon request of the defendant:
(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.

[Ibid.]

Along with consideration of the Carfagno factors, the Appellate Division added

that the previous history of domestic violence between the parties must be fully explored and considered to understand the totality of the circumstances of the relationship and to fully evaluate the reasonableness of the victim’s continued fear of the perpetrator.

[Kanaszka, supra, 313 N.J. Super. at 607.]

The court emphasized that in applications to vacate an FRO, the “inquiry into the history of the relationship and prior acts of domestic violence become important to consider in evaluating the necessity for continued protection.” Id. at 608.

Additionally,

not every motion for dissolution of a domestic violence restraining order requires a plenary hearing. . . . [T]he moving party has the burden to make a prima facie showing good cause exists for dissolution of the restraining order prior to the judge fully considering the application for dismissal. If that burden is met, the court should then determine whether there are facts in dispute material to a resolution of the motion prior to ordering a plenary hearing. Conclusory allegations should be disregarded.

[Ibid.]

Finally, “[t]he linchpin in any motion addressed to dismissal of a final restraining order should be whether there have been substantial changed circumstances since its entry that constitute good cause for consideration of dismissal.” Id. at 609.

Compliance with the FRO over several years, without more, is not enough.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Technorati Tags: , and easy technorati tags for wordpress plugin