If You Seek A Restraining Order, Be Sure to Appear in Court!

If You Seek A Restraining Order, Be Sure to Appear in Court!
by Edward R. Weinstein

After 20 years as a family law attorney, I am well aware that it is much easier to obtain a temporary restraining order (usually done without the assistance of an attorney) versus being granted a final restraining order (which usually requires a lawyer experienced in domestic violence matters). Moreover, through out my years as an attorney I thought I had seen it all, until the first time my client failed to appear for their court date, not just once, but twice! Well, you do not need to be a lawyer to know that it is a litigant’s duty to appear in court and failure to appear may very well lead to defeat. Even an open and shut case will be put into peril by a continued nonappearance. In K.M. v. A.M., the New Jersey Appellate Division confirmed that the dismissal of the “victim’s” complaint for a final restraining order was appropriate due to multiple failures to appear at the hearing.

Middlesex County Family Court
Middlesex County Family Court
Many times, Family Part judges utilize restraining orders to protect women from their former partners. A temporary restraining order is an order issued by a judge in an attempt to keep one person from harassing another person or group of people. The temporary restraining order is only effective for a short period of time, usually lasting no more than a month at most. This is because, in most instances, only one person’s request is needed to get the order. For it to become permanent or semi-permanent, a court of law must hear from not only the party who wants someone else to leave him or her alone, but also needs to hear from the person who is accused of violence, harassment, stalking, or other potentially illegal action.

The temporary restraining order usually specifies exactly how close a person can get to another person without violating the order. The person against whom it is issued may be required by the court to stay at least one hundred feet away from someone else, to not be on shared property, or to not show up at someone’s home or workplace. Each order is different and up to the judge’s discretion.

K.M. obtained a temporary restraining order against his ex-wife on June 24, 2014. The parties appeared for a final restraining order hearing on July 2, 2014, but the hearing was adjourned to July 10, 2014. The court adjourned the hearing so that both parties could retain legal counsel. The order read that that no further adjournments would be granted. Later the same day, K.M. was arrested because of an outstanding warrant. He was released the next day. He alleged that the warrant was issued in error. He also alleged that the arrest caused him to suffer injuries. Among the injuries suffered was a heart attack and a stroke. Curiously, K.M. never attached any medical documentation to support his claims.

K.M. requested another adjournment on July 10. The judge granted the request and reset the hearing to July 21, 2014. The order stated that K.M. had been told that there would not be any more adjournments for any reason whatsoever, and that this was the third time A.M. had appeared. Even though A.M. was present in court on July 21, 2014, K.M. still did not appear. The judge called K.M. on the telephone to find out what happened. K.M. informed the judge that he was going to have a friend hand-deliver a letter to the judge. He also contended that his wife had intimidated his lawyer into quitting, that his wife was threatening him, and that he could not appear at the hearing because his license had been suspended and he was afraid of being arrested again. The judge responded by advising him to have his friend bring him to the court instead of the letter. The temporary restraining order was entered to protect him from his wife’s threats and the point of this hearing was to make the protection permanent. K.M. should have arranged for an alternative form of transportation if his license was suspended. Even though he offered numerous excuses, but the judge did not find any of them to justify his actions in light of the proceedings prior adjournment history. He had an obligation to appear in court, which he failed to accomplish.

The New Jersey Appellate Division found that the judge properly vacated the temporary restraining order, and dismissed K.M.’s complaint for a final restraining order. K.M. argued four points. First, the temporary restraining order should not have been dismissed because nonappearance was due to duress. Second, the judge admitted on the evidentiary record that she never read the domestic violence case which prohibited her from spotting A.M.’s violation of the temporary restraining order. Next, that the reason he missed the final restraining order hearing was the judge because she issued a warrant for his arrest and suspended his license. Finally, that the court failed to enforce A.M.’s temporary restraining order violation. The New Jersey Appellate Division found all of K.M.’s arguements to lack merit, and stated that they do not even warrant review.

To learn more about retraining orders cases, please call or email my office.

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