The Worst Thing a Woman Can Do in Divorce Proceedings – The Abuse of Orders of Protection
April 13, 2011
Orders of Protection are critical to the safety of many. Some people claim that they are simply pieces of paper that mean nothing. Detractors point to horrible stories where people are abused or murdered despite having an order in place.
I disagree–although we only hear of the tragic endings, orders of protection carry an authority that at least some, if not many, abusers grudgingly respect. I believe these orders have saved countless from horrible mistreatment that would otherwise have occurred.
However, it is also an unfortunate truth that because they are incredibly easy to obtain, orders of protection are misused, often against men. And this false practice clogs the system unnecessarily, preventing true victims from having their cases thoroughly examined and depleting victim-assistance resources.
In matrimonial practice, men are drastically more likely to be the spouse who has an order enforced against them at the beginning of a separation or divorce. When a man has had an order of protection issued against him, many automatically think that he must have done something horribly threatening or dangerous to his partner or family in order to have a judge feel compelled to issue an order.
Orders of protection can be “stay away” or “refrain from” in topic. “Refrain from” orders direct a person to behave in a certain way. For example, a refrain from order may direct a person not to threaten another person.
“Stay away” orders are weightier. They force the accused to leave the marital residence and stay away from his partner, home, workplace, and family lest they face prosecution. Notably, stay away orders can remove a person from his home even if his name is on the lease or deed.
There are between 2 and 3 million temporary restraining orders issued in the United States annually*. Despite their huge impact on a person’s emotional and financial well-being, in order to receive a temporary “stay away” order of protection, one needs only to allege that he or she “feels” threatened by their partner. There does not need to be any history of domestic violence whatsoever. There does not have to be an actual verbal threat of domestic violence either. Likewise, there does not need to be evidence of a major overt act, such as stalking or purchasing a weapon.
The modern extreme example of a ruling gone awry involved David Letterman. In 2005, a New Mexico judge granted a woman’s request for a temporary restraining order against Mr. Letterman, claiming that he wanted to marry her and employ her as a co-host. She also alleged that Mr. Letterman forced her to go bankrupt and talked in “code” to her via his show since 1994, causing her sleep deprivation and mental anguish. Thankfully, another judge ultimately quashed that order. However, the issuing judge stood by his ruling.
These orders are issued ex parte, which means the accused has no notice of the proceeding and does not have the opportunity to defend himself prior to its issuance. The burden of proof is the lowest legal standard available- by a preponderance of the evidence, which basically means that a judge has to believe that there is a 51% chance (“more likely than not”) that the allegations are true.
These orders are granted with barely any accountability as to the facts alleged, although they often include a “stay away” provision from minor children.
A temporary order of protection lasts until you have the opportunity for a full court hearing–which unfortunately does not necessarily get scheduled for up to six weeks. Due to clogged judicial systems, sometimes a full hearing can take months. Nor does the hearing necessarily occur at the first court date- adjournments from both sides trying to gather evidence for and against the order are common.
Notably, there is no right to discovery prior to the hearing. And once a hearing takes place, the burden of proof remains the same low standard.
When a false or exaggerated allegation results in a stay away order, many innocent men are suddenly tossed from their homes without any notice. Additionally, they face a sudden and profound financial stress– they must quickly set up another residence to provide for their needs as well as to prove to a court that they have adequate provisions for future child visitations. Many rapidly find themselves having to pay for two households to avoid being accused of shirking their responsibilities. Furthermore, these men often have lost access to necessary legal and personal papers necessary to function or defend themselves.
It is a well-known fact within the matrimonial legal community that many lawyers and their clients use these orders of protection to gain a strategic advantage over their spouse from which it is difficult to recover. And since no judge wants to be the one who “gets it wrong” leading to a tragic result, these orders are easily obtained.
What does the accuser have to gain in misusing orders of protection? A lot of things, including the following:
Judicial requests for exclusive use and occupancy of a marital residence are not often granted, and can take up to six months for a ruling. Therefore, unless an allegation of threat of immediate harm is claimed, couples are forced to live under the same roof unless they can come to some form of agreement. Orders of protection force the accused to immediately leave the residence.
It sets a precedent for custody. Joint custody is presumed. However, if a permanent order of protection is issued containing a finding of domestic abuse, that finding cannot later be disputed. As a result, in many jurisdictions, there is suddenly a rebuttable presumption that the victim should have legal custody. Also, the longer a parent’s access to a child is limited, the less likely that person will be deemed the primary caregiver. In fact, often the accused spouse’s children are now afraid of their father. Many upstanding citizens are shocked to find themselves automatically subject to supervised visitation with a social worker. This may confuse children, wishing to “please” their mother, and scar them unnecessarily for life.
It serves as a bargaining chip–many men are forced to agree to a permanent order of protection either of the same or more limited scope in return for something else such as lower spousal support or more access to children.
It drains resources. It gives the accuser the upper hand in property litigation and spousal support. The ousted spouse has no access to their financial documents, tax forms, personal property, safe deposits, deeds, etc. Although he can always request from his wife’s attorney or the court that these items be made available, the process often takes time, and requests for compliance are often ignored.
It emotionally puts men on the defense. They have no access to their belongings and family. There is the mad dash to find a new place, new clothes, furniture, etc. He is now known as the “bad guy.” And, if he acts too aggressively to refute the allegations, it may make him suddenly seem more menacing. The innocent who are accused are therefore thrown into overwhelming turmoil from which it is difficult to recover.
It creates a windfall for the attorneys. Once a stay away order is issued, the parties cannot communicate with each other. All communications must therefore be carried out via the parties’ lawyers. As a result, there is a strong incentive for the less ethically minded lawyer to protract a legal battle by encouraging this tactic.
There has been a small effort to address the problem, but none have made significant
efforts to remedy it. In New Jersey, in 2008, one trial judge found that the current standard of proof was unconstitutional in that it violated the defendant’s right to due process, and required the stricter “clear and convincing evidence standard.” However, the Appellate Division overturned the ruling, which was upheld by the New Jersey Supreme Court**.
In 2005, The Family Law News, California State Bar’s official publication in the field, noted
that the state issued on average 250,000 orders of protection annually. It acknowledged that the issuance of such orders were “routine” and conceded that they were misused by parties seeking to “jockey” for an advantage in custody matters and as retaliation***. Similarly, the Illinois Bar Journal called orders of protection “part of the gamesmanship of divorce****.”
A few recent studies examine this problem. One study found that 59% of allegations of domestic violence between couples involved in custody disputes could not be substantiated by the courts as true*****. A 2008 analysis of orders issued in one county in West Virginia concluded that 81% were unnecessary or false******. A 2010 review by Connecticut’s Judicial Department noted that ex parte orders increased over 25% from 2003 and 2004, and that nothing was being done to stop frivolous requests*******.
Given the foregoing, this problem is certainly one that our judicial system should address and remedy. Part of the reason I believe that it hasn’t is due to the fact that, unfortunately, those raising this legitimate concern tend to do so using vitriolic rhetoric. Websites focusing on men’s and father’s rights abound, and most use bombastic language that pretty much undermines their point that these men are peaceful and non-threatening. Even the notoriously controversial Phyllis Schlafly jumped into the discussion starting in 2007 complaining that liberal feminists are to blame for the misuse********.
There’s pretty much no doubting my feminist camp allegiance, and it was a personal challenge to review many anger-driven websites and commentaries blasting women and still write this article and acknowledge that there is a systemic-wide problem.
What none of these websites do, however, is offer any solutions. Here are some actions that may serve as a starting point:
Study the issue in a non-partisan manner to assess how prevalent the problem truly is.
Cease the nasty rhetoric. Pointing the blame at a particular political or social group is unhelpful. Both sides must acknowledge that there are many women truly in need of protection, and both must acknowledge that many abuse the system for strategic reasons.
If the jurisdiction allows for it, concerned men who anticipate that their partner or spouse plans to misuse the system should tape record conversations. Such recordings have saved many innocent persons from losing their homes and families.
In complaints, incorporate stronger language delineating the penalties for perjury. Enforce those penalties.
Treat temporary orders similar to criminal charges by requiring an “arraignment” relative to the charges within a 48 hour period. Treat a temporary order as analogous to an arrest, and require within that short time frame an offer of proof similar to the “reasonable suspicion” standard.
At that preliminary hearing, if an initial threshold is met, allow the accused to list necessary personal items (such as clothes) and valuables (such as identification and financial paperwork) at the residence and order the accuser coordinate their release within a specific timeframe. Impose sanctions for non-compliance or obstruction.
Award attorneys’ fees for motion practice to recoup personal property that is not timely released.
Because no judge likes to overrule herself, assign different judges to hear a temporary and permanent order of protection.
Require corroborating evidence for permanent stay away orders where there is no prior history of domestic violence and there is no allegation of actual physical harm.
Give the tort of “abuse of process” some teeth. This tort, rarely used or recognized, basically allows one party to sue another party who has abused a civil or criminal process, such as requesting an unfounded order of protection. Abuse is evident where someone has used the process based on ulterior motivations sounding in economic or social advantages. Unfortunately, some jurisdictions specifically state that the tort is not ripe until after a divorce is finalized, and after the harm is done. These jurisdictions should amend their rules to allow for joinder of this action with divorce proceedings.
Allow any finding of abuse of process to be relevant in custodial considerations where, by clear and convincing evidence, a party proves that 1) a parent willfully misused the protection process in order to gain a tactical advantage, and 2) the willful misuse is evidence that the parent is likely to be unwilling to worth with the other parent in their joint responsibilities*********.
*U.S. Dept. of Justice, Office of Justice Programs Bureau of Justice Statistics.
**Crespo v. Crespo, 989 A.2d 827, 201 N.J. 207 (2009).
***Robe and Ross, Extending The Impact Of Domestic Violence Protective Orders, Family Law News, Vol. 27, No. 4 (2005).
****Lerner, Sword or Shield: Combating Orders-of-Protection Abuse in Divorce, Illinois Bar Journal (Nov. 2007).
*****Johnston J et al. Allegations and substantiations of abuse in custody-disputing families. Family Court Review, Vol. 43, No. 2, 2005.
******Foster BP. Analyzing the cost and effectiveness of governmental policies. Cost Management Vol. 22, No. 3, 2008.
*******Domestic Violence in Connecticut, Judicial Branch, State of Connecticut (2010 Ed.).
********Schlafly, Feminists Abuse Domestic Violence Laws, www.townhall.com, Nov. 26, 2007.
*********See e.g., Campbell v. Campbell, 604 A.2d 33 (Me. 1992).