Court: Right to Counsel Does Not Apply to Restraining Order Hearings

A New Jersey appeals court recently ruled that the State was not obligated to provide counsel to either plaintiffs or defendants for hearings on restraining orders resulting from acts of domestic violence. (1)

The U.S. Constitution provides all citizens with the right to counsel, whether or not they can afford to hire a lawyer. That right, however, only applies to situations that could result in a prison sentence. New Jersey takes it a step further providing defendants, who cannot afford a lawyer, court-appointed counsel if the defendant faces jail time or “other serious consequences,” including the loss of a driver’s license or fines in excess of $1,800. (2)

While the above-mentioned ruling may seem to contradict State law, there is a difference. The court explained that the purpose of a restraining order is not to punish anyone, although it does require proof that a crime (assault, stalking, harassment, kidnapping, etc.) had been committed previously. Instead, the purpose of a restraining order is to protect someone from future harm. To do this, restraining orders give courts the right to impose certain restrictions and even fines of up to $500. These consequences, however, are not significant enough to warrant appointing counsel at the taxpayers’ expense, according to the court ruling. (1)

Although the process of obtaining a restraining order may not require a lawyer, legal assistance can be beneficial. As an example, recently a husband and wife were going through a divorce and sought restraining orders against each other. The husband’s request was granted while the wife’s was denied. At the hearing, the husband was represented by counsel and the wife was not. At appeal, it was revealed that the wife did not show evidence to support her petition at the initial hearing either because she did not know she was allowed to present evidence or she did not know how to go about obtaining the evidence. This oversight on the part of the wife may have been avoided had she been represented by counsel. (1)

With or without legal representation, there are a few things to remember when seeking a restraining order. First, be as specific and descriptive as possible when filling out the request. Bring a photo ID to court, along with as much information about the abuser as possible. Sign the necessary papers before a clerk, notary or even a judge as directed. A judge will review the request for an order and set a hearing date. In the meantime, the judge will grant a temporary restraining order if immediate danger is suspected. (3)

If you or anyone you know needs assistance with a domestic violence issue or a restraining order, contact the experienced divorce and family law attorneys at The Rotolo Law Firm located in the heart of Hunterdon County, at 502 U.S. 22, Lebanon, NJ.

(1) http://www.dailyreportonline.com/PubArticleDRO.jsp?id=1202585803784&NJ_nixes_statepaid_counsel_for_domestic_violence_litigants&slreturn=20130101180104
(2) http://www.aclu-nj.org/theissues/criminaljustice/criminaljusticearchives/stateconstitutionalrightto/

(3) http://www.ehow.com/how_6517654_file-restraining-order-new-jersey.html