PROCEDURES FOR FINAL HEARINGS NJ

PROCEDURES FOR FINAL HEARINGS NJ

4.9.1

4.9.2

4.9.3

4.9.4

A final hearing must be scheduled within ten days of the filing of the Complaint/TRO in the county where the Complaint/TRO was issued unless good cause is shown for the hearing to be held elsewhere. Each county shall provide the police and Municipal Courts with the designated days and times for final hearings.

If the return of service on the defendant has not been received by the day before a final hearing, a designated domestic violence team member shall check with the appropriate law enforcement agency responsible for service (such as sheriff or local police) to ascertain whether the defendant was successfully served. The return of service portion of the TRO must be immediately faxed to the domestic violence team by law enforcement.

The Continuance Order may be used when a new date must be scheduled and there are no substantive changes to the TRO. When substantive changes, including amendments to the complaint, are needed, an Amended TRO shall be used, which shall set forth the changes. The TRO must be attached to the Continuance Order for service. If the defendant has been served with the TRO, notice of the new date may be made by mail, if an address is known.

Any defendant who qualifies under the Servicemembers Civil Relief Act, 50 U.S.C. 501, et. seq., is entitled to have the proceedings stayed while the member is either in military service or within 90 days after termination or release from such service for a servicemember who has received notice of such proceedings, if the court receives a

IV - 94.9.5

4.9.6

4.9.7

letter or other communication: (1) stating that current duty requirements materially affect the servicemember’s ability to appear; or (2) from the servicemembers commanding officer stating that current duties prevent the servicemember’s appearance and that military leave is not authorized. This also permits a servicemember granted a stay from such proceedings to apply for an additional stay based on continuing material effect of military duty on the ability to appear. This shall be entered into FACTS as an extended TRO.

The restraining order shall stay in effect until such stay is lifted.

Nonappearance By Either Party: If no one appears for the final hearing, a domestic violence team member shall attempt to contact the plaintiff and defendant and collect as much information as practicable about the reasons for nonappearance and present same to the court for consideration prior to the dismissal of any Order.

The matter shall be rescheduled where there is no appearance by either party unless the court is fully satisfied that a dismissal meets the standards as set forth on the Order of Dismissal (See Appendix 14).

Nonappearance by the plaintiff: The domestic violence team member shall attempt to contact the plaintiff to collect as much information as practicable about the plaintiff’s nonappearance and present the information to the court. Communications about the plaintiff shall be made outside the presence of the defendant. The file and notes reflecting the findings shall then be brought to the judge. If only the defendant appears, [s]he should be questioned under oath concerning knowledge of the plaintiff’s whereabouts. The court shall inquire if the defendant caused or is responsible for the nonappearance of the plaintiff.

If (1) the plaintiff can be contacted, and (2) the judge is satisfied (after hearing both parties’ explanations) that the plaintiff’s failure to appear was not the result of coercion and duress, and (3) the findings required as per the Order of Dismissal were made, the court may issue an Order of Dismissal. If not, or if the plaintiff cannot be contacted, the matter shall be rescheduled.

Any dismissal order shall be without prejudice, and any Order of Dismissal or order modifying the TRO shall be faxed or otherwise transmitted to the applicable law enforcement agency.

Warrants shall not be used to secure the presence of the plaintiff in court under any circumstances when the plaintiff has failed to appear or has allowed the defendant back into the residence.

When a plaintiff is unable to appear at the final hearing for good cause shown, arrangements shall be made for a telephonic appearance on the record.

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4.10

APPEARANCE BY BOTH PARTIES

4.10.1 When both parties appear for a Final Hearing, the victim and defendant should be kept in different locations and directed to the appropriate intake or waiting area for

4.9.8

4.9.9

Nonappearance by the Defendant: If only the plaintiff appears, the plaintiff’s request for relief should be identified in accordance with the domestic violence procedures.

A. Where the defendant does not appear at the final hearing, and proof of service has been provided, the court should proceed with the final hearing and may enter a final order in default.

B. If the court file does not contain proof of service, the court should conduct a hearing in the presence of the plaintiff to determine the following:

 Whether the plaintiff has seen the defendant in the court house or knows of the defendant’s whereabouts;

 Whether the plaintiff is aware of whether the defendant was served and the basis for such knowledge;

 Whether the defendant has had any contact with the plaintiff since execution of the temporary restraining order; and

 Whether the same or different conditions exist in comparison to those at the time of the initial hearing.

C. If the court determines that the defendant had actual knowledge of the restraining order and hearing date, after making such finding on the record, the court may proceed with the final hearing and may enter a final order by default.

Defendant Not Served: If the court determines that the defendant has not been served but finds there is reasonable likelihood of service on the defendant within a reasonable amount of time (e.g. the defendant’s whereabouts are known, but the defendant is on vacation), a short postponement shall be granted and a date certain scheduled, which shall be memorialized in a Continuance Order (See Appendix 9) or Amended TRO. The Continuance Order shall be served on the defendant with the Complaint/TRO.

In the event that it is unlikely the defendant can be served within a reasonable period of time, then the court can issue an indefinite TRO. This TRO shall continue the reliefs requested by the plaintiff until further order of the court and contain a provision that a final hearing shall be rescheduled upon service on the defendant. The case will be recorded as disposed of in FACTS with the case status reason code of “extended TRO.”