The final restraining order hearing is a civil trial in the Family Part. The plaintiff and defendant may testify, call witnesses, cross-examine witnesses, offer admissible evidence, and argue whether the legal requirements for an FRO have been met.
The Burden Is Preponderance of the Evidence
N.J.S.A. 2C:25-29 expressly provides that the allegations at the FRO hearing are proved by a preponderance of the evidence. That is a civil burden. It is lower than proof beyond a reasonable doubt.
Silver v. Silver Requires Two Separate Decisions
The Appellate Division in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), set out the analysis now routinely used in domestic violence cases.
Step One: Was a Predicate Act Proved?
The judge first determines whether the plaintiff proved, by a preponderance of the credible evidence, one or more predicate acts listed in N.J.S.A. 2C:25-19(a).
Step Two: Is an FRO Necessary?
If a predicate act is proved, the court separately decides whether a restraining order is necessary to protect the plaintiff from immediate danger or to prevent further abuse. The commission of a predicate act does not automatically require entry of an FRO.
History Matters, But Context Matters Too
The PDVA directs the court to consider prior domestic violence history, immediate danger to person or property, the parties’ financial circumstances, the best interests of the victim and any child, safety in custody and parenting-time determinations, and qualifying orders from other jurisdictions. The history can help the judge understand whether an incident is isolated, part of a pattern, or indicative of a continuing need for protection.
Cesare v. Cesare, 154 N.J. 394 (1998), emphasizes the importance of evaluating domestic violence allegations in context.
Due Process Still Applies
Domestic violence hearings move quickly, but ordinary due-process protections still matter. A defendant is entitled to meaningful notice of the allegations being tried and a fair opportunity to respond. The Supreme Court in J.D. v. M.D.F., 207 N.J. 458 (2011), cautioned against converting an FRO hearing into a trial of materially different allegations without appropriate notice and an opportunity to prepare.
Credibility Can Decide the Case
Many FRO trials involve sharply conflicting accounts. The Family Part judge hears the witnesses directly and makes credibility findings. Texts, recordings, photographs, police materials, timestamps, third-party witnesses, and other objective evidence can become especially important when they confirm or contradict testimony.
The Final Decision
If both parts of the Silver test are satisfied, the court can enter an FRO and impose the relief authorized by the PDVA. If the plaintiff does not meet the burden, the complaint is dismissed and the TRO is dissolved.