4.12 FINAL HEARING NJ

4.12 FINAL HEARING NJ

A final hearing is described in N.J.S.A. 2C:25-29a as follows:

A hearing shall be held in the Family Division of the Chancery Division of the Superior Court within 10 days of the filing of a complaint pursuant to section 12 of this act in the county where the ex parte restraints were ordered, unless good cause is shown for the hearing to be held elsewhere. A copy of the complaint shall be served on the defendant in conformity with the Rules of Court. If a criminal complaint arising out of the same incident that is the subject matter of a complaint brought under N.J.S.A. 2C:25-28a has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the Rules of Evidence that govern unavailable parties. At the hearing the standard for proving the allegations in the complaint shall be by a preponderance of the evidence. The court shall consider but not be limited to the following factors:

(1) The previous history of domestic violence between the plaintiff and defendant including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property; (3) The financial circumstances of the plaintiff and defendant; (4) The best interests of the victim and any child;

IV - 13(5) In determining custody and visitation, the protection of the victim’s safety; and

(6) The existence of a verifiable order of protection from another jurisdiction.

When the allegations in the plaintiff’s complaint are incomplete and/or it becomes evident at the final hearing that the plaintiff is seeking a restraining order based upon acts outside the complaint, the court, either on its own motion or on a party’s motion, shall amend the complaint to include those acts, which motion shall be freely granted. Due process requires that the judge make an inquiry as to whether the defendant needs additional time to prepare in light of the amended complaint. A brief adjournment may be required if the judge determines that the defendant did not have adequate notice and needs time to prepare. If an adjournment is granted, a continuance order or an amended TRO shall be entered.

If there is a verifiable order for protection from another state and the court has jurisdiction over the defendant then the acts of violence that lead to that Order may be viewed as providing adequate basis for the issuance of like restraints in New Jersey, without a need for alleging additional acts of violence (See Section VII on Full Faith and Credit.)