When Final Restraining Orders Are Not So Final

Despite their name, final restraining orders are not always final. Final restraining orders (FROs) can be dissolved or modified upon good cause shown by the applicant. However, because of the important role FROs play in protecting victims of domestic violence, legal safeguards are in place to ensure that FROs are not vacated imprudently or prematurely. In a decision by the Appellate Division, the Court reiterated the test for determining good cause shown and remanded to the trial court for a plenary hearing on the matter.               

Defendant J.A. moved to vacate a ten-year-old FRO which prohibited any contact with Plaintiff B.R. and possessing firearms. The parties appeared before a family court judge to hear the motion but the hearing was adjourned. At that time, the first judge entered an amended FRO excusing B.R. from attending the scheduled hearing and acknowledged her request to keep restraints in place.             

At the second hearing before a new judge, the second judge permitted the court clerk who was present at the first hearing to comment on B.R.’s fear at the first hearing, despite the fact that the clerk was not sworn in as a witness. J.A.’s counsel objected to the unsworn testimony as well as the inability to cross-examine B.R. at the hearing. After listening to a recording from the first appearance, the second judge denied J.A.’s motion, holding that J.A. had not shown good cause and a change of circumstances significant to warrant dismissal of the FRO.

The second judge subsequently amended his opinion, omitting his reliance on the clerk’s unsworn testimony, but did not change his disposition of the motion. He noted the physical altercations that formed the basis of the issuance of the FRO, the two contempt convictions from 2004 and 2005, and concluded that B.R. “objectively and subjectively” feared the movant.

On appeal, the Appellate Division reversed, holding that J.A. had made a prima facie showing of good cause and change in circumstances sufficient to warrant a plenary hearing on the issue. The court recited that the Carfagno standard for determining good cause involves a non-exhaustive factors test, including:

(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.

The Court noted that the test accounts for the victim’s objective fear of the defendant. The Court stated that if an objective standard of fear were applied, the scope of the injunction might be broader than reasonably necessary to protect the victim and might unnecessarily infringe on the defendant’s rights.

In reversing the trial court’s order, the Appellate Division considered the defendant’s assertion that he had had no relationship with the victim for at least nine years, had no record of violent acts with other persons, possessed no firearms, was employed and married with children. Moreover, the Court was concerned with the second judge’s inability to observe B.R.’s demeanor at the first appearance. According to the Court, this raised a genuine issue of fact as to the objectivity of B.R.’s fear and whether her refusal to consent to the dismissal of the FRO was done in bad faith. Accordingly, the Court remanded for a plenary hearing and instructed that B.R. be advised of the hearing date if she wishes to object.

This decision presents a cautionary tale and shows the importance of a victim’s participation in all proceedings related to an existing FRO. While a victim may be reluctant to confront the defendant or address traumatic past events, the standard for dissolving or modifying an FRO considers a victim’s wishes, emotions and behavior. Therefore, it is necessary to remain engaged in the legal process, sometimes even years later, to ensure that protectionist measures remain in place if they are still warranted.