Pursuing Orders of Protection: PDVA and VASPA

Since 1991, a victim who is, or was, in a dating or family relationship with their offender, can apply for an order of protection under the Prevention of Domestic Violence Act (PDVA) even if the offender is not convicted of a crime. In 2016, the New Jersey Legislature enacted the Sexual Assault Survivor Protection Act (SASPA), in an effort to further expand protections to victims of sexual assault. SASPA expanded the ability of victims of sexual violence to obtain protective orders, even without reporting to law enforcement or filing criminal charges, and even if they had never met the offender. However, both the PDVA and SASPA failed to provide relief to victims who do not have a dating or familial relationship and/or were not the victim of a sexual assault. Indeed, the PDVA and SASPA failed to fill a “hole” that allowed strangers to engage in a variety of behavior designed to alarm, harass, or cause fear to a victim.

This “stranger” loophole was closed in 2023, when the New Jersey legislature expanded protections to victims through the enactment of the Victims Assistance and Survivor Protection Act (VASPA). VASPA, which went into effect January 2024, updated and expanded protection to individuals who have been victims of sexual violence, stalking, cyber harassment, and lewdness regardless of their current or prior relationship status to the alleged offender.  Accordingly, there are now two parallel paths of protection provided under New Jersey law for victims who wish to pursue an order of protection without a criminal conviction.

The following addresses the similarities and differences in pursuing orders of protection under the PDVA and VASPA.

1. Predicate Acts:

   1. TPO (VASPA): The criminal acts covered under VASPA are criminal sexual contact, sexual penetration, lewdness, stalking or cyber-harassment or any attempt at such conduct.
   2. TRO (PDVA): There are approximately 18 criminal acts covered under the PDVA, which include all of the criminal acts covered by VASPA, and additional acts such as homicide, assault, harassment, criminal coercion, false imprisonment, robbery, etc.

2. Who Can Apply:

   1. TPO (VASPA): Anyone over the age of 18 who is a victim of criminal sexual contact, sexual penetration, lewdness, stalking, or cyber-harassment or any attempt at such conduct. There is no relationship requirement between the victim and offender. A parent or guardian can apply for a TPO for someone under the age of 18 or for an adult who does not understand what is happening to them because of disability or mental illness.
   2. (TRO) PDVA: The victim must be over the age of 18 and must meet one of the following relationship requirements:
      1. Current or former spouse
      2. Present or former dating relationship
      3. Has or will have child in common
      4. Presently residing together or have previously resided together (e.g., caretakers, roommates)

3. Where and How to File an Application:

   1. VASPA and PDVA: A victim may file a TPO (VASPA) or TRO (PDVA) where the alleged act or attempted act took place, where the offender lives, or where the victim resides or is temporarily sheltered. Both applications are ex parte (one party only and without notice to the other party).
   2. TPO (VASPA) applications can only be submitted online through the Judiciary Electronic Document Submission (JEDS) system or in-person at the Superior Court (county courthouse) during normal business hours. Only a Superior Court judge can issue a TPO. As such, applications for a TPO cannot be made at a police department.
   3. TRO (PDVA) applications can be made in-person at the Superior Court (county courthouse) during normal business hours or after hours, on weekends and holidays, or any other time that the Superior Court is closed, at the local police department. Municipal Court judges are authorized to issue TROs. All TRO (PDVA) applications must be recorded.

4. Relief Sought:

1. 1. VASPA and PDVA: When a victim is seeking a TPO (VASPA) or a TRO (PDVA), a companion criminal complaint may also be sought. If issued, the companion criminal complaint will be forwarded to the jurisdiction where the offense is alleged to have occurred for investigation and prosecution.
      1. The issuance of a criminal complaint does not preclude the victim from seeking a TPO (VASPA) or a TRO (PDVA). A victim may also seek to file criminal charges without seeking a TPO (VASPA) or a TRO (PDVA).
      2. Under either circumstance, the State may proceed with the filing of criminal charges on its own.
   2. TRO (PDVA):
      1. Permits the service of a search warrant and/or allow for the seizure of weapons from a respondent/defendant.
      2. Victims may also address issues such as possession of shared residences, child custody, payment of expenses and support, substance abuse or psychological evaluations, etc.

5. Discovery/Preparing Your Case

   1. Discovery
      1. VASPA AND PDVA: discovery may be permitted in “summary actions” by leave of court for good cause shown. See Rule 5:5-1(d). While there are currently no published decisions that address this issue in VASPA matters, like PDVA matters, it is anticipated that VASPA matters will be viewed as “summary actions.” Therefore, discovery will not be permitted as of right. See Depos v. Depos, 307 N.J. Super. 396 (Ch. Div. 1997).
      2. Notwithstanding, both parties have a right to obtain discovery if there was a companion investigation by law enforcement into the acts alleged by the victim. This can include 9-1-1 calls, reports, photographs, body-worn camera footage, statements made by either party, witness statements, and copies of any physical evidence provided by the victim in support of the allegations.
         1. Police Department: Letter can be sent to the custodian of records requesting any and all documentation related to the department’s investigation of the acts alleged by the victim and/or prior related acts / incidents.
         2. Subpoenas Ad Testificandum: Can be served upon law enforcement officers and/or any necessary witnesses for their testimony at the final hearing.
         3. Subpoenas Duces Tecum: Not permitted without leave of court for good cause shown.
   2. Preparation for Final Hearing:
      1. Prepare your client and any witnesses for their proposed testimony, as well as for cross-examination.
      2. Prepare any exhibits that you may seek to introduce. (Bring at least 3 copies that are pre-marked along with exhibit list.) If you are unfamiliar with the practices in any given county, it may be helpful to contact the Court. Some counties require evidence be submitted electronically in advance.  Some counties have certain requirements regarding the use of electronic exhibits.
      3. If you are aware that any witness may require an accommodation (including the ability to appear virtually), notify the Court in advance. (Permission will likely be required for witnesses to appear virtually; your adversary has a right to object to virtual testimony.)
      4. Understand and advise your client regarding the collateral consequences of any outcome.
      5. Discuss possibility of resolving by way of “Civil Restraints.” Ensure that your client understands the differences between the protections afforded under a TPO/FPO vs. under a civil agreement.

6. The Final Hearing:

   1. Burden of Proof to obtain a Final Protective Order (FPO) under VASPA:
      1. The plaintiff/victim has the burden of proof. The standard is a “preponderance of the evidence.” All trials are bench trials.
      2. At the hearing, the Court shall consider, but not be limited to, the following factors in determining whether to enter a Final Protective Order:
         1. The occurrence of one or more acts of nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt at such conduct, or acts of stalking or cyber-harassment against the alleged victim;
         2. The possibility of future risk to the safety or well-being of the alleged victim. See J.S.A. 2C:14-16a.
         3. NOTE: The court will not deny relief due to the alleged victim’s failure to report the incident to law enforcement; the alleged victim’s or the respondent’s alleged intoxication; whether the alleged victim did or did not leave the premises to avoid nonconsensual sexual contact, sexual penetration, or lewdness, or an attempt at such conduct, or to avoid being stalked; or the absence of signs of physical injury to the alleged victim.  SeeJ.S.A. 2C:14-16b.

2. Burden of Proof to obtain a Final Restraining Order (FRO) under PDVA:
   1. The plaintiff / victim has the burden of proof. All trials are bench trials.
   2. The plaintiff/victim must demonstrate by a preponderance of the evidence that a predicate act of domestic violence occurred and that a restraining order is necessary to protect the plaintiff from immediate danger or to prevent further abuse, as established in Silver v. Silver, 387 N.J. Super 112 (App. Div. 2006). The court shall consider, but not be limited to, the following factors:
      1. The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;
      2. The existence of immediate danger to person or property;
      3. The financial circumstances of the plaintiff and defendant;
      4. The best interests of the victim and any child;
      5. In determining custody and parenting time the protection of the victim’s safety;
      6. The existence of a verifiable order of protection from another jurisdiction; and
      7. Any pattern of coercive control against a person that in purpose or effect unreasonably interferes with, threatens, or exploits a person’s liberty, freedom, bodily integrity, or human rights. SeeJ.S.A. 2C:25-29.

7. Relief to Victim FPO (VASPA):

1. FPO (VASPA):
   1. A Final Protective Order shall:
      1. Prohibit the respondent from having contact with the victim; and
      2. Prohibit the respondent from committing any future act of nonconsensual sexual contact, sexual penetration, lewdness, stalking, or cyber-harassment, or any attempt at such conduct, against the victim.
   2. A Final Protective Order may also include the following relief:
      1. Prohibit the respondent from entering the residence, property, school, or place of employment of the victim or the victim’s family or household members, and require the respondent to stay away from any specified place that is frequented regularly by the victim or the victim’s family or household members;
      2. Prohibit the respondent from entering the residence, property, school, or place of employment of the alleged victim or the alleged victim’s family or household members and/or require the respondent to stay away from places frequented by the victim or the victim’s family or household members;
      3. Prohibit the respondent from following, or threatening to harm, stalk, or follow, the victim;
      4. Prohibit the respondent from committing or attempting to commit an act of harassment against the victim;
      5. Any other relief that the court deems appropriate. SeeJ.S.A. 2C:14-16(e) and (f).
2. FRO (PDVA):
   1. The FRO can offer a wide range of relief to protect individuals from domestic violence, including prohibiting contact, access to certain locations, possession of a shared residence, and potentially addressing child custody, financial support, and firearm ownership.
   2. The Court can also order the offender to pay restitution, medical expenses of the victim, and other relief.

8. Procedures, Permanency, and Dissolution:

   1. FPO (VASPA)
      1.  Procedures:
         1. Once a FPO is issued, it is served upon the municipality in which the victim resides, upon the respondent, and upon any appropriate law enforcement agency.
         2. Where the victim is under the age of 18, the FPO will also be served upon the Division of Child Protection & Permanency (DCP&P).
      2.  Permanency:
         1. FPOs are permanent in nature. They do not dissolve after a period of time.
      3. Dissolution: FPOs may be dissolved or modified on application to the Court. See N.J.S.A. 2C:14-16(i).
         1. When considering such an application, the Court shall conduct a hearing to consider whether a “material change in circumstances has occurred” since the entry of the FPO which would make it continued enforcement “inequitable, oppressive or unjust.”  At the hearing, the Court will consider:
            1. The current status of the parties;
            2. The desire of the victim for the continuation of the FPO;
            3. The potential for contact between the parties;
            4. The history of respondent’s violations of the FPO or criminal convictions; and
            5. Any other facts the Court finds relevant to protecting the safety and well-being of the victim.
   2. FRO (PDVA)
      1. Procedures:
         1. If the FRO is issued, the defendant will be photographed and fingerprinted and will be ordered to pay a penalty of $50 to $500, payable through the court’s finance department.
         2. A copy of the FRO will be given to both parties. It is important to review the order before leaving the building to ensure accuracy.
         3. The Family Division will forward a copy of the order to the police department in the municipality where the plaintiff lives.
         4. The plaintiff also should provide copies to work, daycare centers, schools, and any other places of significance.
         5. The plaintiff should keep the FRO in possession at all times. If lost, additional copies can be requested at the domestic violence unit where the order was entered.
         6. Defendant will be barred from handling or owning a firearm. The defendant may be ordered to forfeit their Firearms Identification Card and all weapons in their possession.
      2. Permanency: FROs are permanent.
      3. Dissolution: FROs may be dissolved or modified on application to the Court.
         1. The offender must satisfy the following requirements:
            1. Show there is “good cause” to dismiss the restraining order by meeting the 11 factors listed in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995); and
            2. Show that there is a substantial change of circumstances, since the time the order was granted.
         2. The application must be heard by the same Judge who issued the FRO if the Judge is still in the Family Division. If the judge who entered the FRO is no longer in the Family Division, the offender must provide the transcript of the proceeding so the court can understand the original basis for the restraining order. See Kanaszka v. Kunen, 313 N.J. Super 600 (App. Div. 1998).

9. Contempt

   1. FPO (VASPA)
      1. N.J.S.A. 2C:29-9b governs violations of TPOs and FPOs. An offender’s violation of any of the terms of a Temporary or Final Protective Order shall constitute Contempt. See N.J.S.A. 2C:29-9.  If a person is charged with Contempt, they must be arrested and taken into custody.
   2. FRO
      1. When a person violates a TRO or FRO that person is in contempt. N.J.S.A. 2C:25-30. A violation of an FRO is a criminal offense. If law enforcement believes there is probable cause that a restraining order has been violated, they must arrest the person. The violator can face criminal charges, including a disorderly persons offense or a fourth-degree crime, depending on the nature of the violation. Penalties can include jail time, fines, and a mandatory minimum sentence of 30 days in jail for a second or subsequent violation.

Alissa D. Hascup is a Partner in the firm’s Criminal Practice Group. Kristi L. Terranova is a Partner in the firm’s Family/Matrimonial Practice Group.