When a litigant seeks to dismiss a final restraining order (FRO) entered against him or her, he or she must make a prima facie showing that good cause exists based upon a substantial circumstances since its entry. In A.F.F. v. C.H.G., the judge misapplied the eleven Carfagno factors that a trial court must consider when deciding whether a FRO should be dismissed These factors consist of some of the following: whether the victim consented to lift the FRO, whether the victim fears the defendant, whether the defendant has been to counselling, whether the defendant engaged in other violent acts, etc.
The parties divorced in 1999 and have two children together. Both parties recently have been remarried. The wife previously applied for two TROs, one of which she voluntarily dismissed and one of which was dismissed after a hearing. In 2008, the wife applied for and obtained a third TRO based on a six-page email sent to her and her family members. After a hearing, the judge entered a FRO against the husband.
In 2014, the husband moved to have the FRO dismissed. The trial court judge denied the motion based on the factors in Carfagno. The judge’s decision was primarly based on the wife’s submission stating that she still fears the husband. However, when considering the victim’s fear of the defendant, the court must look at the objective fear, not subjective. The trial judge did not make any findings of fact regarding the wife’s objective fear of the husband. Instead, the judge accepted the statement in the wife’s submission. As a result, the Appellate Division reversed and remanded the issue to the trial judge to conduct a plenary hearing and to explore the objectivity of the wife’s remark of her fear of the husband.
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