Enforcement of Relief under Part II of a Final Restraining Order

Supreme Court Family Practice Committee

2009‐2011 Final Report

Enforcement of Relief under Part II of a Final Restraining Order

When entering a final restraining order under the Prevention of Domestic Violence Act,

N.J.S.A. 2C:25-17 to -35, the court will often order a defendant to comply with certain services,

such as batterers intervention programs, substance abuse evaluations or other social services. By

memorandum dated March 10, 2009, Acting Administrative Director of the Courts, Glen A.

Grant, J.A.D., issued a Protocol for Monitoring and Enforcing Defendant's Compliance with

Orders to Attend Counseling and/or Batterers Intervention Programs. In the subsequent

implementation of the protocol, concerns arose regarding the authority of the court to compel

compliance on its own application, independent of an enforcement application brought by the

victim pursuant to R. 1:10-3. On recommendation of the Conference of Family Presiding

Judges, Administrative Director Grant referred to the Practice Committee, the advisability of a

rule amendment authorizing an enforcement action on the court's own motion. The Practice

Committee considered a court's authority to enforce its orders in the face of non-compliance.

Violations of Part I relief granted in a final restraining order, essentially involving contact

with the victim, are addressed through criminal contempt charges against the offending party

under N.J.S.A. 2C: 29-9(b). Non-compliance with court ordered social services, support or

custody set out in the Part II Relief section of a final restraining order, is not subject to the

criminal complaint process.

Section 6.1 of The Domestic Violence Procedures Manual ("DV Manual") sets forth the

appropriate procedure for enforcement of the terms of a restraining order. Enforcement of Part II

relief is governed by N.J.S.A. 2C:25-30 and 2C: 29-9(b), depending on the conduct and the

provision violated. The DV Manual states, "All relief contained in Part II [N.J.S.A. 2C:25-

29(b)(3), (b)(4), (b)(5), (b)(8) and (b)(9)], must be enforced by civil remedies, i.e., by filing an

application with the Superior Court, Family Part." Relief under this section includes, among

other things, domestic violence counseling and evaluations, batterer's intervention, parenting

time conditions, and financial payments. The DV Manual, section 6.1.3, provides that "[t]hese

may be enforced in a civil action instituted by the plaintiff, generally under Rule 1:10-3 and Rule

5:3-7 by way of motion, affidavit, or in emergent circumstances, an order to show cause."

N.J.S.A. 2C:25-30 states that Part II violations "may be enforced in a civil or criminal

action initiated by the plaintiff or by the court, on its own motion, pursuant to the applicable

court rules." The DV Manual, as referenced above, states that the appropriate remedy is an

enforcement action brought by the victim. While the DV Manual addresses the preferred

practice, the court, by statute, maintains the right to compel enforcement. The issue is the scope

and remedy of enforcement "pursuant to the applicable court rules."

The remedies available to the court for enforcement are provided under the contempt

powers, R. 1:10-1 and -2, dealing with contempt authority, R. 1:10-3 enforcement of litigant's

rights, as well as R. 5:3-7, which details enforcement authority for custody or support violations.

Rule 1:10-1 addresses contempt occurring in the face of the court, and is not applicable.

Rule 1:10-2, while applicable to contempt of an order of the court, requires a separate contempt

complaint to be sworn and prosecuted by the Attorney General or county prosecutor's office.

This is certainly not the preferred enforcement mechanism due to its complexity. Rule 1:10-3

provides authority for a litigant to commence enforcement: "Notwithstanding that an act or

omission may also constitute a contempt of court, a litigant in any action, may seek relief by

application in the action."

Independent of litigant enforcement motions under R. 1:10-3, there are circumstances

where the Family Part enforces orders on its own, or the Probation Division's initiative. The

most obvious example is child support enforcement. Rule 5:3-7 provides for such enforcement

by the court, in addition to R. 1:10-3. The rule provides various enforcement options including

incarceration. Rule 5:3-7 in its current form, however, is limited to enforcing custody or

parenting time orders, and alimony or child support orders.

The Practice Committee determines that the most appropriate way to enforce compliance

of Part II relief on the court's motion is to add paragraph (c) to R. 5:3-7 to address this specific

enforcement issue, as follows:

Enforcement of Relief under Provisions of Domestic Violence Restraining Orders

Not Subject to Criminal Contempt Complaints. On finding that a party has failed

to comply with the provisions of a restraining order issued pursuant to the

Prevention of Domestic Violence Act, not subject to criminal contempt (part II

relief excluded under N.J.S.A. 2C:25-30), the court may, in addition to the relief

provided by R. 1:10-3, grant any of the following remedies, either singly or in

combination: (1) economic sanctions, (2) incarceration with or without work

release, (3) issuance of a warrant to be executed upon further violation or noncompliance

with the order, (4) any appropriate remedy under paragraph (a) or (b)

above, applicable to custody or parenting time issues or alimony or child support

issues, (5) any other appropriate equitable remedy.

Furthermore, the Practice Committee believes that issues concerning procedural

implementation of this new rule should be referred to the Conference of Family Presiding Judges

for recommendation.