Your Options if You Are Not Granted a Final Restraining Order
If you are a victim of domestic violence, you may be able to get protection from the abuser in the form of a temporary restraining order that can later become final. If you had a temporary restraining order (TRO), went to trial, and did not obtain a final restraining order (FRO), you have options: You can make a motion for reconsideration to the trial court, or you can appeal the case to the Appellate Division.
What is a motion for reconsideration?
A motion for reconsideration is when you ask the trial judge to change his or her mind about not granting the FRO because there was a mistake of fact or law, or because the judge abused his or her discretion. In other words, based on the information you gave at trial, you think the judge made a mistake in not giving you an FRO and you want the court to fix that mistake and grant you an FRO.
If you choose this option, you must file a motion for reconsideration within 20 calendar days of the day your TRO was dismissed. In your motion, you write to tell the court why you think the judge made a mistake of fact or of law, and that you think you should get the FRO after all. Note that you are not allowed to refer to new information that you wish you had presented at trial, unless it was not available at that time. Evidence you knew about, but chose not to present, will not be reviewed by the judge. It is not admissible through the motion. The court will send a copy of the motion for reconsideration to the defendant. The defendant will be allowed to write his or her response to your motion. When you go to court, you will not have a new trial. You will only be giving oral argument. This means that you will tell the judge why you think he or she made a mistake in applying the law or interpreting the facts of your case. Remember, you cannot present new evidence unless it was being hidden and/or unavailable at the time of your trial.
See How to Ask the Court to Change/Enforce an Order in Your Case, or Request Another Related Action in Your Case (from New Jersey Courts) to find information on how to file a motion for reconsideration. This includes all of the instructions you will need to file in family court.
How do I know if the judge made a mistake?
In order to determine whether or not a judge made a mistake of fact or law, or abused his or her discretion, see if the judge’s decision fits into one of the following categories:
Mistake of Fact: This is when a judge misunderstands one of the essential facts of the case. The fact that was misunderstood by the judge must be one that will make a difference in the judge’s understanding or decision of the case. You must believe that if the judge realized what the fact was, he or she would not have ruled that way and that hearing the correct fact will change the judge's mind. You can explain to the judge what the actual fact was in order to help the judge come to a different conclusion.
Mistake of Law: A mistake of law is when the judge understands the facts of the case but comes to the wrong legal conclusion. The judge may have mistakenly applied the facts to the law.
Abuse of Discretion: When a judge is said to have abused discretion, it means the judge has made an unreasonable decision in light of the facts and law he or she had to consider, or that the judge has made an arbitrary decision regardless of precedent and settled law.
At the hearing, the judge will hear from each side. After considering what each side has to say, the judge will decide to grant you the FRO or deny your motion.
What else should I know when I file a motion?
NJ Court Rule 4:49-2 Motion to Alter or Amend a Judgment or Order is a rule that states:
Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.
You should also know that you are allowed to request a copy of the audio recording of your trial so that you can review it and prepare for your reconsideration hearing. The recording can be requested at the law library in the courthouse where the trial was held. It takes a few days before it is available for pick-up. The cost for this recording is typically $10.
If you choose this option, it is important to include in your certification the specific reason you are asking the judge to change his or her mind. Lay out the fact that you believe the judge got wrong or provide the law that the judge misapplied. If you believe that the judge abused his or her discretion, you will need to provide specific information about why you believe this and what you believe the appropriate decision would have been. It is not a strong case to ask the judge to change his or her mind because you believe you were right without evidence to support your legal argument for that belief.
Appealing a case to the Appellate Division
An appeal is when you ask a new, higher court to review the trial court’s decision to not grant you an FRO. If you believe the judge made a mistake by misinterpreting the facts, misapplying the law, or abusing his or her discretion, you can apply to the Appellate Division to review your case.
Within 45 calendar days of the trial judge’s decision to deny you an FRO, you may file a notice of appeal. A notice of appeal is paperwork that tells the Appellate Division court you are requesting an appeal of the decision made by the trial judge. Appeals are more work than motions for reconsideration and take a lot more time. First, you will have to file a notice of appeal, a case information statement, and a transcript request from your trial court case. The fee for the transcript request cannot generally be waived. This paperwork gets filed in Trenton and must also be sent to all of the other parties in your case. After you file the notice of appeal with the court, you wait to hear from the Appellate Division as to whether or not they will hear your appeal. If the court hears your appeal, you will receive a scheduling order that will tell you when your brief is due. You will have to write an appellate brief to the court telling them the mistakes made by the trial court. An appellate brief is a formal document you will prepare for the court, asking them to reverse the lower court and grant you the FRO. You may cite cases, statutes, court rules, or any other authority that will help you prove that an FRO should have been granted to you. See How to Appeal a Decision in the Superior Court (from New Jersey Courts) for further information on what must be included in your appellate brief. The defendant will also be given the same opportunity to file a brief.
See How to Appeal a Decision in the Superior Court (from New Jersey Courts) for information on how to file an appeal. This document has all of the instructions you will need on how to file an appeal in a New Jersey court.
After briefs are filed, oral argument may be scheduled. You may request to have oral argument, but you do not have to ask for oral argument if you do not want to. Either way, the judges will have read your appellate brief and, if you choose to do so, they will also listen to your argument before deciding your case.
Which option is best for you?
A motion for reconsideration will happen more quickly. The judge who decides your motion for reconsideration will be the same judge assigned to your restraining order hearing. If you think you can change the judge's mind, it may be worthwhile. The motion will generally be decided within four weeks, depending on how busy the court is at the time you file.
An appeal will take longer. You will be in front of a new panel of judges who did not hear your case firsthand but will review the transcript of what was said at the hearing. You will have to write an appellate brief, which is longer than a motion for reconsideration. If you think the trial court judge made a mistake but you don’t think you can meet the standard for reconsideration, an appeal may be best for you.
You do not need to choose between the two options—you can do both. You must keep the dates in mind. A motion for reconsideration must be filed within 20 calendar days with the same court that heard your original case. If you lose on your motion for reconsideration, you can appeal that decision. When appealing the motion for reconsideration, you go through the same process as you would with appealing the original trial court decision. The appeal must be filed at the Appellate Division within 45 calendar days of when the judge dismissed your motion for reconsideration. You also still have the option to appeal the initial loss of your trial if you were unsuccessful at the motion for reconsideration. This appeal must be filed within 25 days of the dismissal of your motion for reconsideration (or later if you filed your motion for reconsideration in less than the 20 days required).
It is important to remember that no matter what option you choose, the defendant will be made aware of the motion or appeal you file. The defendant will be served with notice of your motion or appeal and have a chance to respond. The defendant will also be informed of any future court dates regarding the possibility of whether you can get an FRO. The defendant will then have the opportunity to go to court and respond to what you say.
Here are a few other things to keep in mind if you do not get an FRO:
If you do not feel safe returning to a home you shared with the abuser, you may want to reach out to your county domestic violence agency for a shelter referral. It is also a good idea to keep your cell phone charged and your gas tank full. Let someone know of your whereabouts. See Guide to Services for Victims of Domestic Violence
Although you were not able to get an FRO against the defendant, you can try to get one in the future if a new act of domestic violence occurs. If a new act occurs, you can apply for another temporary restraining order. You may be able to get an FRO against the defendant in the future if you need it. You should still call the police if you feel in danger. You can always reach out to a domestic violence agency or Legal Services of New Jersey for any questions you may have. Call LSNJLAWSM, Legal Services of New Jersey’s statewide, toll-free legal hotline, Monday through Friday, 8:00 a.m.-5:30 p.m. at 1-888-LSNJ-LAW (1-888-576-5529).
This article is from the April 2013 issue of Looking Out for Your Legal Rights®.