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Dissolving Final Restraining Orders

By Snyder & Sarno on February 04, 2014

One of the remedies for victims of domestic violence is a final restraining order (FRO), which prohibits contact between the batterer and the victim. In New Jersey, FROs are permanent, meaning they last forever. However, there are instances where a FRO can be dissolved based on an application filed by one of the parties the FRO. This was discussed in a recent case in the New Jersey Appellate Division, S.D. v. M.J.R.


In that case, the defendant-batterer moved to vacate the FRO due to newly discovered evidence that came to light during a separate criminal trial that occurred because of his violent relationship with the plaintiff. The court noted that a FRO can be dissolved for good cause. To determine whether there is good cause, the court may take into consideration the factors set forth in Carfagno v. Carfagno, which are as follows:


(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 court.


However, after noting these factors, the court pointed out that the linchpin in determining whether to dismiss a FRO is whether there has been a substantial change in circumstances since the FRO was entered that constitutes good cause to dismiss the FRO.


 In this case, the court found that the Carfagno factors weighed against dismissing the FRO. The court then looked to whether the newly discovered evidence, namely medical records, should result in dismissing the FRO.


 To dismiss the FRO with newly discovered evidence, the court requires “that the evidence would probably have changed the result, that it was unobtainable by the exercise of due diligence for use at the trial, and that the evidence was not merely cumulative.” However, the court ultimately found that the defendant could have gotten this evidence during the FRO hearing and additionally found that, given the extensive history of violence by the defendant against the victim, it would not have changed the result. Therefore, the FRO was not dissolved.


So, the takeaway from this case is that although FROs are permanent in New Jersey, they can be vacated in certain circumstances. However, in order to succeed in vacating a FRO, a defendant must be able to show a substantial change in circumstances and good cause. The court will consider a variety of factors when deciding whether to vacate the FRO, including whether the victim consents to or opposes the dismissal of the FRO. Many of the factors involve the court examining the relationship between the parties at the time of the application and the victim’s fear of the defendant.


 If you are a victim of domestic violence, remember that the law provides you many remedies. You should speak with an experienced attorney to find out what legal options you have. If you have questions about your rights and remedies, please contact the experienced attorneys at Snyder & Sarno at (973) 274-5200.

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