Understanding Carfagno Hearings In New Jersey
In the State of New Jersey, our domestic violence laws were enacted to protect victims from further abuse.
The Prevention of Domestic Violence Act of 1991 was created to protect victims from further acts of domestic violence. New Jersey is also unique in that a domestic violence restraining order remains in full force and effect until either, further order of the court, or if and when the victim chooses to modify the order through court intervention. Otherwise the final order of protection can remain for a lifetime.
Unlike other jurisdictions, New Jersey’s domestic violence restraining orders are civil, not criminal. However, there can be criminal complaints filed against an abuser. I often explain it in my practice that it is like two railroad tracks running on each side of the train.
Dissolving A Restraining Order
If a person convicted of a domestic violence restraining order wants to file an action to overturn a final restraining order, one way to do that is to file an action to dissolve or modify the final restraining order “upon good course shown,” pursuant to Carfagno v. Carfagno, 288 N.J. Super. 424 (1995) and the statute N.J.S.A. 2C: 25–29(d).
The court looks at eleven different factors to decide whether it is appropriate to modify, alter, amend or dissolve the restraining order. The eleven factors are:
- Whether the victim consented to remove the restraining order;
- Whether the victim fears the defendant;
- The nature of the relationship between the parties today;
- The number of times that defendant has been convicted of contempt for violating the Order;
- Whether the defendant has a continuing involvement with drugs or alcohol abuse;
- Whether the defendant has been involved in other violent acts with other persons;
- Whether the defendant has engaged in counseling;
- The age and health of defendant;
- Whether the victim is acting in good faith with opposing defendant’s request;
- Whether another jurisdiction has entered a final restraining order protecting the victim from the defendant;
- Other factors deemed relevant by the court.
It is extremely important if you want to dissolve a restraining order that it be done correctly so that you have the best chance of succeeding. There are many issues that the court also reviews aside from the eleven factors enumerated here.
A motion to dissolve a restraining order pursuant to the Carfagno factors is very specific and is not the same law applied relative to an appeal of the restraining order itself.
The Carfagno Review Process
There are requirements necessary for the court to properly review a Carfagno application.
You can request that the court resolve a restraining order upon good course shown. The law goes on to say, “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.” The statute does not specifically define the words “good cause”. Therefore, the court has great latitude in deciding what is good cause, even though they will be certainly governed by the eleven factors in the Carfagno case as noted above. If the court believes that the victim still objectively fears the defendant, the court may not dissolve the restraining order.
If the parties no longer have any contact with each other and have no relationship at all, the court will look positively at that factor. That factor alone, however, is not reason enough to dissolve a restraining order.
One of the most important factors are the length of time from the entry of the restraining order to the time of the filing of the request to modify the final order. Essentially, the longer the space of time between the two events, the better the chance is of success. The court also wants to see if the defendant has complied successfully with prior orders.
Lasting Consequences
If there has been absolutely, positively, no contact of any kind whatsoever in the period of time from the entry of the restraining order to the filing of the motion, that will be seen as a positive note by the court.
As you may understand now, there are some permanent and lasting consequences of a restraining order against you.
I understand domestic violence restraining orders and have extensive experience in both trying these cases to conclusion, in filing appeals, and in filing Carfagno motions.
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Are you facing a Carfagno hearing? Contact me at 201-870-0826 or complete my online form to schedule a consultation. Allow me to provide you with the legal guidance and representation needed during this critical time.