Restraining Orders for Out of State Defendants

November 26, 2016

NJ Restraining Orders: Do New Jersey Courts Have Personal Jurisdiction Over an Out-of-State Defendant? 

Often times, victims of domestic violence flee their home state in order to escape the violence of their alleged perpetrators.  In these instances, the State of New Jersey does protect victims of domestic violence who come to New Jersey looking for refuge from their alleged abusers.  In this regard, New Jersey’sPrevention of Domestic Violence Act, N.J.S.A. § 2C:25-17 to -35, permits fleeing victims of domestic violence to file for a protective order in a place where the plaintiff resides or is sheltered at the time of the filing.  See N.J.S.A. § 2C:25-28 (“[A] plaintiff may apply for relief under this section in a court having jurisdiction over the place where the alleged act of domestic violence occurred, where the defendant resides, or where the plaintiff resides or is sheltered.”) 

Defendants in these cases, however, should consult with an experienced New Jersey restraining order attorney in order to determine whether or not they should submit to New Jersey’s jurisdiction over them.  Personal jurisdiction is the authority of a court over the parties in the case. Whether a court has personal jurisdiction over a defendant in New Jersey is a fact sensitive inquiry.  The question is whether the defendant has minimum contacts the State of New Jersey, so as to reasonably anticipate being called into court here. 

In Shah v. Shah, 184 N.J. 125 (2005), the husband and wife resided in Illinois, where the wife was allegedly abused by the husband.  The wife subsequently fled Illinois in order to stay with family friends in New Jersey, where she applied for a temporary restraining order.  In evaluating the court’s authority to order relief, the New Jersey Supreme Court held that “if personal jurisdiction cannot be exercised over a [nonresident] defendant within constitutional due process limits, the temporary restraining order may only provide for prohibitory relief.”  Id. At 129-130.

In short, the New Jersey Supreme Court concluded that the state’s public policy interest in protecting domestic violence victims outweighs the need to establish personal jurisdiction over the defendant, so long as the order of protection contains only prohibitory relief.  Thus, in those cases where the out-of-state defendant objects to New Jersey’s jurisdiction over them, New Jersey courts will distinguish between the ordering of “prohibitory relief,” which is permissible, and “affirmative relief,” which is not.  Prohibitory relief, such as a “no contact” order, is relief that simply prohibits the defendant from engaging in certain acts.  Affirmative relief, such as an order requiring the defendant to surrender firearms or to pay spousal support, on the other hand, is relief that requires the defendant to perform some affirmative act.

The New Jersey Supreme Court in Shah reasoned that prohibitory relief prohibits the defendant from engaging in activity that is already specifically against the law and, therefore, did not violate any of the defendant’s substantive rights.  Thus, the Court concluded that New Jersey trial courts do have jurisdiction to enter a Temporary Restraining Order, providing for only prohibitory relief. 

The Court further held, however, that in those case where the out-of-state defendant objects to the court’s jurisdiction over him, the issuance of a Final Restraining Order cannot take place.  The Court reasoned that this is because the issuance of a Final Restraining Order includes orders of affirmative relief, for example, by requiring the defendant to surrender their firearms and pay penalties.  See N.J.S.A. 2C:25-29(b) (one against whom a victim protection order has been issued is required to surrender firearms and pay a civil penalty and a surcharge).  In practice, what this leads to is courts in these instances entering an “indefinite” Temporary Restraining Order providing for no contact between the parties, which is in essence a Temporary Restraining Order without an expiration date.  

Depending on the facts of your case, it might in fact make sense for you to consent to New Jersey’s jurisdiction and to defend against the entry of the Final Restraining Order.  In other instances, however, the best strategy might be to contest the New Jersey court’s personal jurisdiction over you, in which case a Final Restraining Order cannot be entered and any protective relief ordered would be limited.  As each restraining order case is highly fact sensitive, it is best to consult with a New Jersey restraining order lawyer to determine which strategy makes the most sense in your case. 

The defense attorneys at the Law Office of Randolph H. Wolf are experienced in defending out-of-state clients at restraining order hearings.  Please do not hesitate to contact us for a free initial consultation if you have an issue concerning a temporary or final restraining order in New Jersey.  You can reach us at 732.741.4448.

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