Court Issued Domestic Violence Restraining Order Against Dad Even Though No Claim of Violence

Robert Franklin, Esq.
August 12th, 2011

In the U.S. domestic violence restraining orders are routinely issued without even a claim that violence has occurred or will. We know that. But this case puts a human face on the whole, sordid system of domestic violence restraining orders. Here’s the court’s file sent to Fathers and Families by Brad Howe.

Brad and Correna Howe are divorced. They live in North Carolina and have a little girl who’s now four years old. Correna has primary custody and Brad has visitation rights. Correna walked out on the marriage in 2009 and immediately filed for a domestic violence protective order (DVPO). Shortly thereafter, that request was dismissed.

She also requested a DVPO in June of this year, but unfortunately for her, Brad had videotape evidence that her claims were fabricated. So she didn’t get that one. She also paid no penalty for her false claims.

But her second effort to get a DVPO against Brad was successful. Here’s what happened: Brad was due to have some visitation time with his daughter, but he couldn’t reach Correna who wasn’t at home and didn’t answer her phone. So the next day he showed up at her house asking to take the child as was his right under their custody order. Correna refused saying that the girl was going to daycare. Brad persisted and the child made several attempts to come to him and get into his arms. Correna pulled her back and told Brad to get off her property. Brad moved his van across the street and when the two came out of the house, the little girl tried again to go to her father, which Mom prevented.

Brad went to the girl’s daycare and again she went to him, and this time Correna let her go. She says she did so because she didn’t want to “make a scene” at the school. My guess is she didn’t want the daycare staff to see her do what she’d done just minutes before at her house – keep a four-year-old girl from her father.

That’s what got her a DVPO. I know what you’re thinking; Brad did nothing wrong. True, but the letter and the intent of North Carolina law are that he need not do anything wrong. Indeed, in her request for a DVPO, Correna nowhere charges him with violence or a threat of violence. After stating that he came to pick up the child, Correna went on to tell the court that,

I told him that she was going to daycare and would not leave. He kept knocking at the door and when we ignored him he began taking pictures of my house, yard, my car. I opened the door & yelled at him to get off my property. He then moved his van across the street & began videotaping us. [The child] started crying and wanting to go to her dad. I drove to daycare & when I got there, Brad was there and to prevent a scene & upset the child anymore I let him have her.

Brad actually only photographed the car. He did that because its convertible top had a large rip in it, directly above where the child rides. It had been there for 10 months during which time the girl wasn’t shielded from rain, sun, exhaust fumes, etc. He took the photos to use as evidence.

Notice that the child was upset because she was prevented from going to her father, a fact which Correna attempts to use against him.

Most important, though is the fact that no allegation of any form of violence or threats of violence appear in Correna’s statement to the court. Nevertheless, the judge issued the DVPO against Brad and was well within the law in doing so. The court found that Brad had “placed [Correna] in fear of imminent bodily injury and in fear of continued harassment that rises to such a level as to inflict substantial emotional distress.” That wording of course was lifted directly from the North Carolina statute.

The court ordered Brad to, for a period of one year, stay away from Correna at her place of work and “any place the plaintiff may be.” Really. I didn’t make that last one up. By itself it renders the order utterly overbroad and unenforceable.

Interestingly, the trial judge made it clear that this order was not to be read to interfere with the custody order already in effect. So all of those pick-ups and drop-offs that divorced couples do aren’t covered by the order. Could domestic violence occur there? Of course it could as the judge well knows, which strongly suggests that the whole exercise is futile. Why order a person to stay away from another and at the same time allow him regular contact?

Then there’s that clause “any place the plaintiff may be.” If Brad goes to the grocery store and Correna shows up there he’s in violation of the order. In fact, even if she doesn’t show up, he’s in violation because she “may” do so.

Needless to say, Brad appealed the DVPO, but his appeal failed. As strange as the trial court proceedings were, the appellate court wasn’t any better.

First, the court of appeals accurately stated that being placed “in fear” is entirely subjective. There’s no objective standard to judge the matter by. Of course the legislature could have required that an order would issue only in the event that a reasonable person similarly situated would have been placed in fear, but it didn’t. Essentially anything can qualify as long as the person seeking the order can convince the judge that she really was afraid.

So never mind the fact that Correna in no way acted afraid. Never mind that, far from being afraid, the four-year-old girl was eager to see her father and upset that she wasn’t allowed to. So the same events that a four-year-old took in stride, placed her mother “in fear.” But none of that mattered. Correna convinced the judge she was in fear and therefore, a DVPO was issued against Brad. Again, there wasn’t the slightest hint of violence in the event that triggered the Domestic Violence Protective Order.

But the whole thing gets stranger still. That’s because there was no evidence offered at trial that what Brad had done that day placed Correna in fear. She alleged that it did, but when it came time for her to testify at trial, here’s what happened:

Brad, representing himself, asked Correna if she were in fear and she responded “Yes I am, yes I am.” He then asked her why and she responded, “You keep filing all these actions against me; you are “not getting your way”; and “I know it’s just a matter of time before you do something because you’re not getting your way.”

That was the extent of the “evidence” that he had placed her “in fear” when he went to pick up their daughter. In other words, none. She gave no testimony about that event at all, but the appellate court, when faced with his appeal based on the lack of evidence, simply pretended that Brad’s allegedly filing motions in court had something to do with what happened at the house when he came to pick up the child.

And that doesn’t even begin to address the question of whether simply filing motions in court (if he did that) constitutes domestic violence under North Carolina law.

After all, we once had a constitutional right to seek “redress of grievances” in court and elsewhere. So asking courts for certain relief you believe you’re entitled to is constitutionally protected. Or maybe not. The appellate court utterly ignored the fact that it was finding evidence where none existed. So why not also ignore the fact that filing motions in court is a constitutionally protected activity and therefore not subject to prohibition via the expedient of a DVPO.

From start to finish, it’s all pretty remarkable. The whole case shows the extent to which allegations of domestic violence have utterly distorted American jurisprudence, not least our Constitution.

But the most remarkable part is the fact that a man can be restrained in his liberty for a year based solely on his ex-wife’s claim to have been placed “in fear” by his filing motions in their custody case. No violence, no threat, just her naked claim to her own feelings.

Source: http://www.fathersandfamilies.org/?p=18444#more-18444