4.19 REQUESTS FOR DISMISSAL OR REOPENING NJ

4.19 REQUESTS FOR DISMISSAL OR REOPENING NJ

4.19.1 WithdrawalsofComplaint/TRObytheplaintiff-Whenavictimseekstowithdrawa civil Complaint/TRO after a TRO has been entered but prior to the entry of a final order, the victim should do so in person and before a judge. When the request is made by telephone, the victim should be directed to come to the courthouse and report to the domestic violence unit. Whether the request is made in person on a walk-in basis or on the scheduled final hearing date, the victim should be directed to the appropriate domestic violence staff person or intake. Victims do not need to wait until the final hearing to request a dismissal.

Where a municipal TRO was issued and the paperwork has not reached the Family Division, the staff person should contact the police to obtain information about the Complaint/TRO, preferably receiving a FAXED copy. The matter must be docketed and a file prepared prior to the matter being brought before the judge.

IV - 24A victim advocate should be available to speak to the plaintiff, in person or by telephone. Where this is not possible, the staff should make the plaintiff aware of the existence of an advocate along with a name and telephone number, preferably in writing.

A professional staff person is to meet with the victim to ascertain that:

A. The victim has read and understood “What Dissolving a Restraining Order Means” (See Appendix 12);

B. The victim has not been coerced or placed under duress to withdraw the Complaint/TRO;

C. The victim understands the cycle of domestic violence and its probable recurrence;

D. The victim is aware of the protective resources available through the court and the local domestic violence program, especially with regard to housing and court-ordered emergency custody and support;

E. The victim clearly understands that withdrawal of the Complaint/TRO and dismissal of the TRO will eliminate the protections that had been issued;

F. The victim is aware that such withdrawals, while they should not be done without careful thought, are not prejudicial if [s]he should need to seek protection in the future; and

G. The victim is informed that any parallel criminal matters are separate and distinct and must be addressed in a separate venue. Victims should be advised to discuss the matter with the appropriate prosecutor.

Once the victim has been counseled as described above, if [s]he wishes to pursue withdrawal of the complaint, [s]he must fill out a Certification to Dismiss Complaint/ TRO (See Appendix 13). The completed form should be placed in the file and an available judge should be located. The victim should then be sent to the appropriate waiting area.

The judge should complete a review of the file and certification and question the victim, on the record, using the same procedure as a request for dismissal of a final order.

After reviewing the file and the Certification to Dismiss, the judge should review the above with the victim on the record. If the judge finds that the request for withdrawal is an informed one and not made under duress, the withdrawal shall be granted.

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When the complaint has been withdrawn and the TRO dismissed, copies of the order of dismissal should be distributed to the plaintiff and any law enforcement agency that received the TRO, and served on the defendant in the same manner as the TRO, where it has been served, unless otherwise designated by the court.

Where the defendant was not served with the TRO, the dismissal shall not be served on the defendant.

4.19.2 Dismissalswith“CivilRestraints”-Thecourtshouldnotinitiateorsuggesttheuse of “civil restraints” in domestic violence cases. If civil restraints are requested by the plaintiff, the court should question the victim on the record using the same standards as a request for a dismissal and in addition, ascertain the following:

A. Whether the victim is aware that the “civil restraints” in an FM (dissolution) or FD (nondissolution) matter will not provide the same protection as a TRO or FRO;

B. Whether the victim understands that the police must arrest for a violation of a domestic violence restraining order but there will be no arrest for the violation of “civil restraints” and the police are unlikely to respond to a call regarding such a violation;

C. Whether the victim will feel safe with the protections offered by the “civil” restraining order; and

D. Whether the victim understands [s]he has a right to obtain a new restraining order if another act of domestic violence occurs, even if “civil restraints” are in effect.

Under no circumstances shall an FD matter be opened for the sole purpose of effectuating “civil restraints.”

4.19.3 Dismissal of FRO at the Request of the Plaintiff

Upon good cause shown, any final order may be dissolved or modified upon application to the Family Division of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or the judge dissolving the order has available a complete record of the hearing or hearings on which the order was based. [N.J.S.A. 2C:25- 29d]

A request for dismissal of a final order should be handled in the same manner as a request for withdrawal of a Complaint/TRO (see section 4.19.2). The dismissal must be requested in person, and before the judge who entered the order or a judge who has available the complete court file, after the victim has been counseled

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concerning her/his rights and the ramifications of a dismissal. The court should determine whether an order for child support, custody and/or visitation was entered as part of the FRO and if so, determine whether the victim wants the relief to continue. If so, these provisions should be made part of an FD order, then and there, without undue waiting and refiling by the plaintiff.