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By Joseph E. Cordell, J.D., C.P.A, LL.M

Principal Partner, Cordell & Cordell

Orders of protection are unfortunately common in family law cases and are often used for strategic reasons.

The terminology of the protective orders vary by state (they can be called protection from abuse orders, personal protection orders, domestic abuse injunctions, etc.) but in general they are intended to bring about an end of the abuse toward a person and their minor children.

These orders are usually easy to get, but a court still cannot issue one unless the petitioning party presents enough evidence to show abuse or even the threat of abuse. Remember that abuse does not just have to be physical abuse.

Though it varies greatly by jurisdiction, most states allow orders of protection to be granted without a full hearing. All one party needs to do is tell a judge, under oath, facts sufficient to show that they, or their children, have been harmed or will be harmed if the order is not put in place.

The hearings, and the resulting orders, can be arbitrary at best. We once had a case where the wife petitioned for a domestic abuse restraining order. The wife made various allegations, and we disproved or showed how she did not meet her burden on all of them. The judge found that nothing in the petition was credible or amounted to abuse or threats of abuse.  

However, he stated that he watched our client’s behavior and found that during the hearing, the client was glaring at his wife. The judge found that behavior to be intimidating to his wife and granted the injunction based on that behavior being a threat.

Typically, the difficult part for the court is determining which petitioners need protection and which petitioners are asking for the restraining order in order to influence another aspect of the case, such as custody.

It is not uncommon in divorce and child custody cases for one party to request an order for strategic reasons. This is because the order often includes a requirement for the restrained party to stay out of the home, have no parenting time, refrain from all phone and e-mail contact, etc.

In effect, the order becomes a de facto sole custody order. It is usually up to the restrained party to file a motion to terminate the order and then a hearing is held.

An order of protection is enforceable in every state, not just the one it is sought in. Having an order of this type entered against you may also affect your criminal history record. In some states you cannot purchase firearms, and many times protective orders are visible on background checks for employment.

Read my seven tips on how you can fight an order of protection.

 


Comments (2)Add Comment
0
Abuse of Temporary Orders of Protection
written by Terri, September 22, 2010
I absolutely agree with you. The use of temporary orders of protection to get a leg up on custody claims has been a travesty in the family courts for a long, long time. But I think (hope?) there has been a positive trend toward judges wising up, especially those judges who had matrimonial practices before they got on the bench. What's your feeling on this?

[N.B.: I've been so bugged about abusive TOP's for so long (Lord knows I dealt with enough of them in the past :
0
Abusive TOP's
written by Terri, September 22, 2010
Hmm, somehow the rest of my comment vanished into cyberspace...

Here's the gist of what vanished: ...in the past smilies/angry.gif ) that the action in my novel-in-progress kicks off with exactly that kind of bogus TOP. The resulting custody battle forms the backdrop for the story.]

I think it's truly unfortunate that bogus TOP's tend to diminish the real ones. When people are at serious risk of harm, a TOP shouldn't become impossible to obtain simply because the baseless ones have jaded the court's perspective.

Just despicable, IMHO, to abuse the courts like this - not only does it harm the 'innocent' (if there is one) spouse, it hurts the chldren who are wrenched into the battle, AND it endangers the parties who really need a TOP but now face an uphill battle to get one....

Sorry for the long comment, but this is an issue that has fired me up for a very long time.

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