Under Oklahoma Law, There Are Statutory Penalties for Filing Abusive Protective Orders

Video Transcribed: So you’ve been served with a protective order in Oklahoma with allegations that you know you didn’t do, or they’re just plain nonsense. Now you’re wondering, “What happens to her for wasting my time and my money?” Well, I’m here to talk about that today.

My name is Brian L. Jackson. I’m an Oklahoma father’s rights attorney, and we’re going to talk about abusive protective orders. Under Oklahoma law, there are statutory penalties for filing abusive protective orders.

However, the burden to illegal burdening, you have to prove to take advantage of these penalties is pretty steep. The first and most obvious one that’s available to you is there is a provision under Title 22 that allows for the assessment of attorney’s fees against individuals who frivolously file protective orders.

Unfortunately, the standard of proof in this situation is that you have to show that it was, one, frivolously filed, and two, that there was no victim. And that’s a very high burden to make. And I can speak from experience in saying I’ve done a lot of protective order litigation from both sides, getting attorney’s fees for a defendant where a protective order is denied is extremely difficult. Now, there is also some statutory language under Title 22 that makes it a crime if you use a protective order to gain an advantage in custody litigation.

But unfortunately, again, this is an unusual thing that you would see happen. In my going on seven years of practice, I’ve never seen somebody get prosecuted for the misuse of protective orders to gain an advantage in custody litigation.

The crime is on the books, and I’m not saying it’s never been prosecuted, I’ve just never seen it. And I think politically, and I hate to go there, but I think politically, prosecuting someone who sought out a protective order and lost the argument in court is going to be difficult unless you have a pretty solid case that it really was abusive just because of the fact that people who are victims, people who file protective orders are viewed as victims and there is a certain reluctance to go after them because they continue to carry that status even if they lose the argument on the protective order.

This brings me to a point I wanted to talk about with protective orders. Unfortunately, the way that the legal environment operates right now, does to some extent incentivize the misuse of these protective orders because the penalties for misuse are very hard to attain, sometimes impossible, and because of the legal benefits that go along with successfully prosecuting a protective order. And it’s not just having the protective order, there are other legal benefits that go along with it.

There is an incentive there to misuse them, particularly in cases where child custody is at issue. If an individual successfully obtains a protective order, number one, it can effectively, by default, give them immediate custody of the child in question if they put the child on a protective order. Number two immediately sets up a situation where the other side is fighting an uphill battle.

And if you are successful in getting a final protective order, it makes the issue of domestic violence, stalking, and harassment res judicata. And what res judicata basically means, it’s a fancy legal word for the issue’s already been decided. When an issue becomes res judicata, it basically means you don’t get to reopen that factual issue and argue it.

So if a court enters a protective order, a final protective order against you, and then you go into custody litigation, the issue of domestic violence, harassment, or stalking, depending on what the grounds were for the protective order, is already considered settled, which means now the court can look at that protective order and basically use that as evidence that you are, in fact, a domestic abuser, a stalker or harasser.

And that negatively impacts your custody case because that does set up a strong argument against you having custody, having unsupervised visits. So there is that advantage. The other thing it creates is it sets up a situation wherein in the case of divorce or paternity litigation, the other side can seek their attorney’s fees and get an attorney’s fee award and they’re entitled to it. So there’s some monetary incentive there as well to try to get a protective order.

And as I discussed earlier, the penalties if you lose are virtually non-existent. Not because there aren’t statutory penalties, but because in practice, they’re not enforced very often. So the result is there’s very little disincentive not to abuse this.

For this reason, it would be my position that, guys, number one, if you do find yourself at the wrong end of one of these, you really need to get a good lawyer and fight it to at least avoid having the final protective order entered. I mean, you can beat them. I do a lot of this kind of litigation, and I’ve beaten a number of them, even ones that look really bad. So they can be beaten.

And if you beat it, at least you don’t have to pay her attorney’s fees, you don’t have that disadvantage hanging over your head in custody litigation if that’s what you’re dealing with. However, I also think that guys, it’s time we get together and talk about updating the law in this area.

I think I would suggest, one, it should be easier to get attorney’s fees if you win the argument on a protective order. In my opinion, I believe if you can show by clear and convincing evidence that it was abusively filed, that is it was filed either on the weak allegation or an allegation that’s pretty clearly not going to meet the statutory requirement, then that should be enough to get you attorney’s fees.

Number two, I think the misuse of these protective orders ought to set up a presumption against the misuser having custody of children or having unsupervised visitation of children. And to me, it’s prima facie evidence of an intent to alienate because the effect of the protective order is either that the defendant is outright excised out of the child’s life.

In other words, they never get to talk to the child because if the child’s in a protective order, you are legally prohibited under the pain of criminal law from having any contact with that child. On that party being on supervised visitation, which is harmful to the relationship with the child as well.

Frequently, when protective orders are filed abusively in that regard, it also results in periods of no contact because it takes time to clear that up. It’s not an instantaneous process. So there needs to be some additional disincentive to the misuse of these protective orders.

And I’ll go on record saying that I think there are legitimate cases where protective orders are necessary, but the unfortunate fact is they are frequently misused by individuals who are seeking to gain an advantage in court, particularly when there’s child custody at issue and it’s a heavily contested case.

And this is unfortunately a weakness in the current legal environment in Oklahoma. So, guys, I would encourage you, call your legislators and start asking for a change in the law because this is a real problem. And if you’ve been around the family courts at any length of time, you would see this.

And if you’re one of those guys who’s been a victim of this chicanery, definitely tell your story. And if you do need help with a frivolous protective order or abusive protective order, then I would encourage you to go to Dads.Law, where fathers are not disposable.