I would strongly urge you to bring an attorney with you. Without knowing the basis for the TRO I cannot really answer completely but as he has his own lawyer he is clearly trying to avoid a Final Restraining Order. You need someone to help you make sure that you are safe.
The standard of proof under which the elements must be demonstrated is a lower standard of proof than is required in a criminal trial. In a FRO hearing, the standard of proof is that the elements be proved by a “preponderance of the evidence,” a standard that has often been explained as being met where “it is more likely than not” that the elements have been satisfied. In a criminal trial, the standard of proof is the more forbidding standard of “beyond a reasonable doubt.”
At the hearing, the alleged victim will first testify about the incident of domestic violence that gave rise to the restraining order. He or she can also call witnesses to bolster the claim. Exhibits and evidence can be entered including emails, text messages, voice mail messages, etc. The defense then has an opportunity to cross-examine the alleged victim and any witnesses who take the stand. The defendant will then have the ability to testify and present any evidence and/or witnesses they wish. The plaintiff also has the right to cross-examine and make a rebuttal testimony once the defendant rests. Throughout the proceeding, judge may ask various questions to both parties and witnesses. Once all testimonies have been taken, the judge will make a decision as to whether a FRO is warranted.
Domestic violence cases often present difficult issues of proof, as there are often no witnesses to the alleged abuse. Such cases often come down to a “he said she said” contest, with the court ultimately siding with the party that the court, in light of all the evidence presented, views as the more believable party. While it takes very little to get a TRO, it takes a credible position to prevent a FRO.
When evaluating whether a FRO should be entered, the judge will analyze the following three factors exist: (1) whether a predicate act of domestic violence occurred; (2) whether a prior history of domestic violence exists; and (3) whether the victim is in reasonable fear for their safety and a restraining order is necessary to ensure their safety.
To determine if an act of domestic violence has occurred, the judge will consider whether the act or acts of the alleged abuser constituted any of the following crimes under the New Jersey Criminal Code:
Harassment 2C:33-4
Assault 2C:12-1
Criminal Mischief 2C:17-3
Terroristic Threats 2C:12-3
Sexual Assault 2C:14-2
Lewdness 2C:14-4
Stalking 2C:12-10
Criminal Trespass 2C:18-3
Burglary 2C:18-2
If the judge finds that there is evidence to support the victim’s complaint after analyzing the above factors, a FRO will be issued to the victim. The judge will then decide what type of relief should be granted to the victim. Available reliefs include: protection from future violence, prohibitions against contact and harassment, custody of any minor children and safe conditions of parenting time, support, rent or mortgage payments, temporary possession of personal property, professional counseling and/or prohibition against weapon possession. After the FRO has been issued, a copy of this order will be given to both parties. A file copy of the final order is also sent to the local police department.
If you are a party to a restraining order and are accused of violating that order, you can be charged with criminal contempt. The severity of the charge against you depends on the individual circumstances of your case.
If the restraining order is a result of domestic violence you will be charged with a Crime in the 4th degree. A Domestic Violence offense carries a potential 18 month prison sentence.
In what county is your case being heard?
