In order to protect a victim’s safety in the face of domestic violence, it is sometimes necessary to obtain a Temporary Restraining Order. After a Temporary Restraining Order is issued, the Court is to schedule a trial to determine if a Final Restraining Order should be entered in accordance with Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). While a Temporary Restraining Order is commonly thought of as a criminal issue, in New Jersey, Temporary Restraining Orders are actually civil in nature. As such, the burden for proving the two (2) prongs of Silver is not “beyond a reasonable doubt,” but rather a “preponderance of the evidence.” However, in New Jersey, a violation of either a Temporary Restraining Order or a Final Restraining Order is a criminal action under a different Docket Number. This potential criminal action for a violation of a restraining order is what ultimately protects the victim from any future domestic violence because of the harsh remedy associated with same.
On the other hand, there are many different reasons why both parties would prefer to resolve matters in different way, commonly referred to as an Order for Civil Restraints. A Civil Restraints Order can only be filed if there is another, separate docket that is before the court (i.e. a divorce or non-dissolution action). More specifically, the Order cannot be placed under the domestic violence docket. Similar to a Temporary Restraining Order, Civil Restraints are civil in nature (as the name suggests) and are usually consented to by both parties. The parties can set the terms as to what restraints should be included and can agree to terms based upon the parties’ specific set of circumstances. It is very important to note, however, that the remedy for a violation of a Civil Restraints Order is vastly different, and less harsh than a violation of a Restraining Order. Contrary to a Restraining Order, when a person violates a Civil Restraints Order, it is not a crime and there is no criminal action. The remedy for a violation of a Civil Restraints Order is to file a motion under the separate docket seeking relief for the party’s violation of the Order.
While the remedy is clearly considerably less harsh than a Restraining Order, Civil Restraints serve a purpose and are utilized instead of a Restraining Order under certain circumstances. You should consult with an attorney prior to agreeing to a Civil Restraints Consent Order.