The attorneys in this office, including myself, have written various blog posts concerning domestic violence, restraining orders, and the like. However, no time has been dedicated to the aftermath of restraining orders and the possible consequences associated with violating a restraining order, whether intentionally or unintentionally. As most people know, the purpose of a restraining order is to avoid future communication or contact between the parties. Therefore, any communication or contact thereafter, while a restraining order remains active, is considered a contempt of that restraining order. Oftentimes a party will indicate that they have been given “permission” to communicate with the party they have been restrained from. This is insufficient to avoid a contempt charge so long as the restraining order remains in place and parties are instructed to avoid any such contact or communication until they have received verification that the restraining order is no longer active.
Pursuant to N.J.S.A. 2C:29-9(b), in relevant part, “a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the ‘Prevention of Domestic Violence Act of 1991,’ or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense.” In other words, this statute specifically sets forth that any violation of a temporary restraining order, final restraining order, or other order of the Court entered under this Statute, shall be considered a crime in the fourth degree. Accordingly, depending on the circumstances of each particular case, a jail term can be imposed for even the first offense. It is worth noting that upon a second offense, or any subsequent offense thereafter, a thirty (30) day jail term is a mandatory provision that will be imposed upon anyone found guilty thereof. Any complaint for contempt also includes its own form of restraint between the parties that is separate and apart from the restraining orders
Once a restraining order, whether temporary or final, the party being restrained is required to abide the terms and provisions thereof until such time as the Court has entered an Order either terminating or modifying that order. Accordingly, regardless of the reasoning, if any such order is violated, that party will be arrested and will be brought in for an initial appearance, known commonly as a R. 3:4-2 first appearance hearing. At that time, the charges against the defendant will be made known and it will be determined whether or not the offense is indictable or non-indictable.
If the offense is indictable, pursuant to New Jersey court Rule 3:4-2(b), the judge shall:
(1) give the defendant a copy of the complaint and inform the defendant of the charge;
(2) inform the defendant of the right to remain silent and that any statement may be used against the defendant;
(3) inform the defendant of the right to retain counsel and, if indigent, the right to be represented by the public defender;
(4) ask the defendant specifically whether he or she wants counsel and record the defendant’s answer on the complaint;
(5) if the defendant asserts indigence, and does not affirmatively, and with understanding, waive the right to counsel, assure that the defendant completes the appropriate application form for public defender services and files it with the criminal division manager’s office;
(6) inform the defendant that there is a pretrial intervention program and where and how an application to it may be made;
(7) inform the defendant of his or her right to have a hearing as to probable cause and of his or her right to indictment by the grand jury and trial by jury, and if the offense charged may be tried by the court upon waiver of indictment and trial by jury, the court shall so inform the defendant. All such waivers shall be in writing, signed by the defendant, and shall be filed and entered on the docket. If the complaint charges an indictable offense which cannot be tried by the court on waiver, it shall not ask for or accept a plea to the offense; and
(8) admit the defendant to bail as provided in Rule 3:26.
If the offense is non-indictable, pursuant to R. 3:4-2(c), the judge shall:
(1) give the defendant a copy of the complaint and inform the defendant of the charge;
(2) inform the defendant of the right to remain silent and that any statement may be used against the defendant;
(3) inform the defendant of the right to retain counsel and, if indigent and entitled by law to the appointment of counsel, the right to be represented by a public defender or assigned counsel; and
(4) assign counsel, if the defendant is indigent and entitled by law to the appointment of counsel, and does not affirmatively, and with understanding, waive the right to counsel.
It is also worth noting that pursuant to the decision in State v. Washington, 319 N.J. Super. 681, there is no defense for a contempt charge based upon reconciliation between the parties so long as the restraining order remains active. Accordingly, it is imperative that any party that is currently restrained to make sure that any and all orders have been revoked before any contact or communication is made with the other party. Therefore, it is always best to navigate these sensitive matters with the assistance of counsel, especially if the charges include a second or subsequent offense of contempt, as any such charge carries a mandatory thirty (30) day jail term. The attorneys at James P. Yudes, P.C. are well equipped to walk you through this procedure to ensure that your rights are not violated and the best possible outcome is reached for all.