Modifying Restraining Orders: What You Need to Know

If and when a Final Restraining Order is entered in the State of New Jersey, it is, in fact, “final.” The restraining order is considered permanent and does not have an expiration date. It will remain in place until one or both parties seek a modification from the court to either change its terms or to vacate it entirely. 

If you are the protected party and are now seeking to remove a restraining order against your former partner, you must first file a motion with the Superior Court providing reasons as to why you want the restraining order lifted. Whether it’s because you and the defendant reconciled, or sufficient time has passed such that you no longer fear the defendant, you will be required to demonstrate to the judge that you no longer need the protection offered by a Final Restraining Order. If you are the defendant and a final restraining has been entered against you, you and your attorney will have to demonstrate to the judge that the plaintiff no longer requires protection and that you no longer present a threat to them. 

In determining a request for a modification of a restraining order, the judge must weigh a number of factors before rendering a decision:

  1. Victim’s consent; 
  2. Victim’s fear of defendant;
  3. Parties’ current relationship;
  4. How many violations of the restraining order, if any, the defendant committed;
  5. Defendant’s drug and alcohol abuse; 
  6. Additional violent acts committed;
  7. Whether the defendant has participated in counseling;
  8. Age and health of defendant;
  9. Good faith of the victim in opposing the defendant’s request for modification;
  10.  Existence of any other restraining orders in any other jurisdiction; and
  11. Any other factors deemed relevant by the court. 

These factors were determined by the court in 1992 in Carfagno v. Carfagno. In that case, the husband, Mr. Carfagno, was accused of harassing and abusing his wife, Ms. Carfagno. The court ordered a restraining order against Mr. Carfagno. In 1995, Mr. Carfagno argued that the court should vacate his restraining order because no recent incidents occurred between the two parties. Ms. Carfagno opposed the request because she alleged that she still feared him. Evidence showed that Mr. Carfagno violated the final restraining order and lied throughout his testimony. Courts can only modify an order if good cause was shown, which in this case it was not. Mr. Carfagno’s restraining order was not revoked because he violated it twice by continuing to follow and obsessively call Ms. Carfagno. 

Although the court denied Mr. Carfagno’s request in that case, it set forth the factors for future litigants and courts to consider when making similar requests. Each case is fact-specific and requires a detailed analysis to determine your chances of success. If you are contemplating filing for a modification of a restraining order, feel free to contact us at jennyb@birzlaw.comor (201) 701-1218 to set up an initial consultation to discuss the details of your matter.