Jersey City, NJ asked in Domestic Violence for New Jersey

Q: I am a woman in NJ. I had a FRO entered by default by someone who sexually assaulted me when I was a minor.

This person was an older woman in ministry. Her and my former pastor had me arrested in 2015 and a FRO was entered by default because I didn't know I had a court date. I sued the church for the assault and just won. Also, I am a part of the ACP program for protection and will be moving out of state soon to avoid frivolous arrest for "violating the FRO" I do need the FRO vacated for work because I am entering the field of RN. Any advice on how I can handle this? The other party doesn't agree to vacate by the way.

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2 Lawyer Answers
James A. Abate
James A. Abate
Answered
  • Domestic Violence Lawyer
  • Somerville, NJ
  • Licensed in New Jersey

A: You will need to file a Cartifagio application. Typically I will tell people that the application is dead on arrival without consent of the plaintiff. However, the default status and the fact that you have a court that determined you were sexually assaulted could be enough to overcome that. These are complex applications and you would be well served to have an attorney.

Richard Diamond
Richard Diamond
Answered
  • Domestic Violence Lawyer
  • Millburn, NJ
  • Licensed in New Jersey

A: There is case law available to assist in the filing of an application to the court to vacate a domestic violence final restraining order. The pivotal case in NJ is Carfagno vs Carfagno, which laid out the requirements ( when the restraining order was entered on the merits). Those factors include the victim’s consent in removing the restraining order; the victim’s continued fear; the current relationship between the individuals; has the defendant violated the restraining order since it was issued; does the defendant have a history of substance abuse; does the defendant have a history of violence with others; and whether the victim is acting in good faith in opposing the defendant’s quest to have the restraining order removed. In the recent NJ case of J.N. v. S.B., the court also held that the court should also determine whether the continuation of that restraining order ( under the circumstances presented by an individual case) prejudices the defendant. In your setting, given that it was entered by default, that recent case can also be of assistance to you given your planned future employment setting and plans to leave the state. If you file the application, you must obtain the transcript of the victim's appearance before the court so that the reviewing judge can also read the information advanced at the time as to the basis for her fear of you. Absent the submission of that transcript as part of your application, your chances of getting relief from the court will dramatically decline ( even though it was entered by default, there still had to be an appearance by the victim before the court to explain her need for an order of protection and the basis of her fear).

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