Violation of a Restraining Order Attorney in Union County

Violation of a Restraining Order in Union County, New Jersey

A violation of a restraining order will ultimately result in a criminal contempt charge. The violation must be by the original “aggressor” and it does not matter whether it is a Final Restraining Order (FRO) or Temporary Restraining Order (TRO). Violation of a restraining order is a serious offense which can result in a felony record and even mandatory incarceration. If the police find there is probable cause that a violation took place, then they are obligated to arrest and charge the defendant with criminal contempt of the domestic violence restraining order under N.J.S.A. 2C:25-31. It is important to note that the aggressor does not have to be at the scene for the police to make an arrest. If the cops find that there is not probable cause to pursue a criminal prosecution, then the victim may still file a criminal contempt charge in the Superior Court Family Part, Chancery Division pursuant to N.J.S.A. 2C:25-32 because probable cause is not required for civil matters.

Criminal Contempt of Restraining Order 2C:29-9 vs. 2C:25-30

As mentioned above, a violation of a restraining order can be prosecuted in either the Family Part or Criminal Part of the Superior Court depending on the alleged circumstances. The Criminal Part, Law Division hears more serious contempt charges such as fourth degree contempt charges which normally arise if the aggressor committed a disorderly persons offense in violation of the order. In contrast, the Family Part, Chancery Division hears lesser contempt charges such as if the violation involves a petty disorderly persons offense (Harassment), mere contact with the victim, or if the violation involved visitation,

Regardless of whether the case is heard in the family or criminal court, a state prosecutor will be involved in all criminal contempt violation charges. Under 2C:29-9(b), you are guilty of fourth degree criminal contempt if you knowingly disobey a court order and the conduct which constitutes the actual violation of the restraining order would also constitute a separate indictable crime or a disorderly persons offense. On the other hand, the contempt will be a disorderly persons offenses under 2C:25-30 if the act would normally not constitute a crime but for the existence of the restraining order. This can include contacting the victim, possessing any weapon, following the victim, or being at a place restricted by the restraining order but with no intent to commit a crime. We have provided a chart below which gives a breakdown of the two different types of contempt of a restraining order and what constitutes them:

Disorderly Persons Offense + Contempt Charge 4th Degree Contempt Heard before a Criminal Superior Court Judge
Petty Disorderly Persons Offense + Contempt Charge Disorderly Persons Offense Contempt Heard before a Family Superior Court Judge

Penalties for Violating a Restraining Order

A first offense of contempt can be punishable by incarceration if the court finds that the aggravating circumstances outweigh the mitigating circumstances. N.J.S.A. 2C:44-1(b). More importantly, a second or subsequent offense of criminal contempt the Domestic Violence Act is punishable by 30 days mandatory incarceration for even a non-indictable contempt charge. However, the enhanced jail penalty does not apply to a defendant who is simultaneously convicted for multiple contempt charges even if the conduct occurred on separate dates. State v. Bowser, 272 N.J. Super. 582 (Ch. Div. 1993).

The aggravating and mitigating circumstances the judge may consider when sentencing a defendant to jail for criminal contempt under N.J.S.A. 2C:44-1(a) and (b) are listed below for your convenience.

 

Aggravating Circumstances for Violation of Restraining Order

  •   Victim particularly vulnerable;
  •   Risk that the aggressor will commit another offense;
  •   Aggressor’s prior record;
  •   Policy seeking to deter aggressor and others;
  •   Policy avoiding sense that “fines are only cost for doing business”;
  •   Victim over 60 years old is especially vulnerable;

Mitigating Circumstances for Violation of Restraining Order

  • Aggressor’s conduct neither caused nor threatened serious harm;
  • Aggressor did not contemplate that the conduct would cause or threaten serious harm;
  • Substantial grounds exist to excuse or justify the aggressor’s conduct, though failing to establish a defense;
  • Victim induced a facilitated the commission of the act;
  • Aggressor has no history or prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;
  • Aggressor’s conduct was the result of circumstances unlikely to reoccur.

Are There Defenses for Contempt of Restraining Order?

Since a contempt charge is a violation of a court order, the State of New Jersey is the plaintiff and therefore a prosecutor will be assigned to the case, not the complainant or original victim. State v. Brito, 345 N.J. Super. 228, 230 (App. Div. 2001). Therefore, a defendant should be aware that reconciliation with the alleged victim is not a valid defense to a contempt charge, unlike a final restraining order hearing. State v. Washington, 319 N.J. Super. 681 (Ch. Div. 1998). However, there are affirmative defenses for contempt of a restraining order, for instance if the court cannot show that the defendant had actual notice of the restraining order then they cannot be convicted of contempt. Because the state is the interested party, a victim’s failure to appear may not result in an automatic dismissal, especially after the first listing. This is because under the Domestic Violence Act the court has a duty to protect victims of domestic violence and the lack of appearance may be based on coercion or duress by the aggressor.