Oftentimes in a heated custody/divorce case, one party will do anything and everything they can to get an upper hand on the other party. As a practicing criminal and family attorney, I have noticed a mounting trend of individuals seeking protective orders in order to achieve this goal.

In a typical scenario, it happens like this: a nasty divorce is pending and, given how long it takes for a typical contested case to work through the system, the parties get restless and want quick results to spite the other and get an advantage in the divorce case.  So, they file for a protective order, which is unfortunately an easy way to go and it seems like word is getting around. They allege that their spouse has hit them…slapped them…threatened them, etc., and they petition the court for relief.

At this point, the whole protective order process is put in to motion, and regardless of whether the allegations have merit or are completely fabricated out of hatred, there is nothing you can do to stop the machine until the process has been completed. What happens next is the court will hold a “hearing” to decide whether to grant a temporary protective order. The burden on the petitioner at this stage is extremely low- they just need to show some sort of “reasonable basis” for the order, and 9 times out of 10 (or more…), the court will grant it. The respondent does not need to be present for this hearing, and in fact there is no requirement that they even be notified that the hearing is taking place. Thus, it’s not hard to comprehend why these temporary orders are so easily and frequently granted.

Given that one doesn’t exactly have to jump through hoops to get a temporary order, logic would dictate that the consequences of such an order would be minimal but…in this case logic does not prevail. Once the temporary order is granted and the respondent is served, the respondent usually must vacate the family home and stay away from the petitioner until the final hearing. If there is a custody case pending between the parties, the petitioner will almost always ask that they be granted sole custody of the parties’ children pending the final hearing. So, the respondent is not only kicked out of their house but also denied access to their children, all because of a one-sided hearing and a legally minimal showing of “reasonable grounds”.

Typically a final protective order hearing is set within one week of the court issuing the temporary order. At the final hearing, the respondent has two options: 1) consent to a protective order or 2) have a hearing. Oftentimes these options put the respondent between a rock and a hard place. There are benefits to consent, chiefly: there is no admission to the allegations; the judge is not making a finding of abuse; it is much easier to clear from your record; and it is more favorable for immigration and/or employment purposes, as opposed to going to a hearing and losing.

Should you decide to take option 2 and go to a hearing, it will essentially be a mini-trial. The petitioner will put on their case and you’ll have a chance to challenge their evidence. You’ll put on your case, and the petitioner will have a chance to challenge your evidence. Although the burden of proof in the final hearing is slightly higher than at the temporary hearing, it is not nearly as protective as the benchmark legal standard of a criminal case, “beyond a reasonable doubt.” The standard in this hearing will be preponderance of the evidence, which basically is a fancy way of saying that if the judge believes the petitioner’s story even slightly more than yours, you’re a goner. They can make a finding of abuse against you and enter a final protective order. Such a finding can be damaging for your immigration status, security clearance, employment, pending custody case, and your life in general,  so it is always risky to go to a final hearing, even if you steadfastly deny the allegations against you. This situation puts respondents in a tough spot to have to choose between the safe option and the risky one, even if the petitioner is lying or has fabricated evidence.

In conclusion, in my experience it is not uncommon for individuals going through a domestic case to abuse the system and bring false charges against their spouse in the form of a protective order, armed with the knowledge that the burden of proof is low and it does not take much to get a temporary, or even a final, order. Once the order is issued, they run back to the judge in their custody case months later and pull that protective order out of their arsenal to show that they are an angel from heaven and their spouse is the devil.

It’s unfortunate that people choose to go that route, not just because it’s a crime to perjure yourself in court (to state the obvious..), but because it does permanent damage to the kids and eradicates the chances of moving forward civilly with your spouse for the sake of the kids. Further, it discredits and disrespects the system. It’s a shame that the “protective order” would receive a bad rap in the legal world, as the process was undoubtedly designed to assist in true cases of domestic violence, which occur every day. I do not mean to be flippant and dismissive of the fact that there are many cases where protective orders are warranted and necessary, and have undoubtedly saved the lives of countless individuals throughout the years. But on the flip side, the same safeguards that were put in place to assist those in need can be abused and ruin the lives of innocent individuals and families due to a jealous, spiteful, or manipulative petitioner. Perhaps this issue will become increasingly apparent and change will be implemented to the protective order process. Until then, if you’re going through a heated domestic case, beware of the dreaded protective order!

Call Azari Law, LLC today at 301.362.3300.