In New Jersey, a final restraining order is forever unless a judge dismisses it in response to a motion filed by either party. Quite often, it is the Defendant who wants to dismiss the FRO against him or her. There are actually two ways to do this, although almost all motions are the same. I’ll first address the one most people don’t know about.
Vacating a FRO pursuant to R. 4:50-1
A final restraining order in New Jersey is like any other and is therefore subject to Court Rule 4:50-1. This issue is lost among many lawyers and in fact, some judges don’t agree that this rule applies to FROs. However, the case law makes it clear that such a motion is proper. We knows this because this firm was successful on appeal for just such a motion. This motion attacks the procedural aspects of the FRO itself and not the merits. For example, in the case that we won on appeal, the defendant was not made aware of the serious consequences of an FRO. As a result, same was vacated pursuant to this rule. As judges become more familiar with the procedural aspects of domestic violence proceedings in New Jersey, these motions will be less viable. However, if the FRO is older, this motion may be successful.
Dismissing a FRO pursuant to Carfagno
Just about every single motion filed to dismiss a final restraining order in New Jersey is done pursuant to Carfagno v. Carfagno. That cases sets forth several factors that the court must look at to determine if such a motion should be granted. Keep in mind that dismissing a final restraining order is the exception and not the rule. It can be very difficult to win one of these motions if it is not filed correctly. Thus, these motions must be well thought out and hard hitting. There is no real time limit for these motions to be filed but in general, the longer the time period between the entry of the FRO and the motion, the greater the chance of success.
Our team of tough, smart lawyers have been successful in helping clients dismiss FROs in courts across New Jersey. Call us anytime at 732-773-2768 to discuss your case and how we can help you.