A domestic violence restraining-order case is civil, but violating the order can become a criminal matter. The same underlying incident may also produce separate assault, harassment, threat, stalking, weapons, or other criminal charges.
A Restraining Order Is a Court Order, Not a Private Agreement
Once a TRO or FRO has been entered and the defendant is bound by it, the defendant must comply with the actual terms of the order. A plaintiff cannot privately authorize conduct that the order prohibits.
Contempt Under N.J.S.A. 2C:29-9
N.J.S.A. 2C:25-30 provides that violations of domestic violence orders are generally enforced through subsection b. of the contempt statute, N.J.S.A. 2C:29-9. The grading depends in part on whether the conduct constituting the violation also constitutes a crime or disorderly persons offense.
Under N.J.S.A. 2C:29-9(b), a purposeful or knowing violation of a domestic violence order is a fourth-degree crime when the violating conduct itself could also constitute a crime or disorderly persons offense. Other purposeful or knowing violations are generally disorderly persons contempt offenses.
The State Must Prove a Knowing or Purposeful Violation
A contempt prosecution is not established merely because contact occurred. The prosecution must prove the mental state and other elements required by the contempt statute. Service, actual knowledge of the order, the precise wording of the restraint, who initiated the conduct, and what the defendant purposely or knowingly did can all become important.
Arrest Can Be Mandatory
The PDVA directs law enforcement to arrest in specified domestic violence circumstances, including when there is probable cause to believe a served domestic violence order was violated. Other mandatory-arrest provisions apply when qualifying injury or weapon circumstances exist.
The Underlying Incident Can Produce Separate Criminal Charges
A plaintiff may pursue civil restraints and a criminal complaint arising from the same event. For example, an alleged assault may be litigated as a predicate act at the FRO hearing and separately prosecuted as a criminal or disorderly persons offense.
Family Testimony and the Criminal Case
Current N.J.S.A. 2C:25-29 provides that when a criminal complaint arises from the same incident, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used against the defendant in the simultaneous or subsequent criminal proceeding, subject to the statute’s exceptions for domestic violence contempt matters and certain otherwise-admissible hearsay when a party is unavailable.
Second or Subsequent Nonindictable Contempt Has a Mandatory Minimum
N.J.S.A. 2C:25-30 provides that a person convicted of a second or subsequent nonindictable domestic violence contempt offense must serve a minimum term of at least 30 days, notwithstanding the ordinary disorderly-persons sentencing provision.
Practical Rule: Follow the Written Order
If the order says no contact, stay away, or communicate only through a specified channel or person, the written restriction should be followed exactly. If circumstances change, the remedy is an application to the court, not an informal side agreement that leaves the defendant exposed to a contempt charge.