It’s a Form of an Injunction
Video Transcribed: My name is Brian L. Jackson. I am a father’s rights attorney in Tulsa, and today, I’d like to talk to you about protective orders and child custody. Protective orders in Oklahoma are entered pursuant to authority under Title 22, which is the criminal procedure code, and basically, the intent of a protective order is to enter an injunction to protect victims of domestic violence from being further victims of domestic violence. It’s a form of an injunction. It’s an injunction that carries criminal penalties if you violate it. It’s a criminal misdemeanor on a first offense, and it is enhanceable to a felony if you continue to do it.
However, one thing you do see from time to time in cases where a protective order will include not only an adult victim but also child victims and where the defendant of the protective order is the other parent.
This is a common occurrence, unfortunately. It’s also illegal and is not what … When I say legal, it violates the, it’s outside of the jurisdiction of the protective order of the court I guess is a better way to put it, although it is also, if it’s done intentionally to effect an advantage in domestic court, it is also a crime.
But the protective order court’s authority specifically excludes the power to enter a protective order that purports to adjudicate custody. So this is outside of the court’s jurisdiction and authority when it’s sitting on protective orders.
In other words, it becomes a subject matter jurisdiction problem. Unfortunately, though, you do see from time to time folks who will seek out a protective order to affect custody, and the unfortunate fact of the matter is that, although it is a crime … It is very, I’ve never in my career seen someone get prosecuted for misusing a protective order to gain custody.
Furthermore, it’s extremely difficult to even recover your attorney’s fees in defending such a protective order because of the stringent rules under Title 22 for getting attorney’s fees in a protective order case.
Essentially, you would have to show both that the protective order was frivolously filed and that there was no victim. In many cases, you’ll get a situation where the party filing the protective order simply cannot meet their burden.
It’s not that they … And the court doesn’t make that specific finding of a frivolous filing and no victim. And therefore, the person who successfully defends it, although they may no longer be subject to the protective order, is unable to recover their attorney’s fees, and there’s no hard consequence to someone using the protective order in this way because of the fact that one, it’s hard to get attorney’s fees, and two, prosecutions for intentional misuse of protective orders … I think it’s fair to say they’re very rare. I’ve never seen one. That’s not to say that they don’t happen. It’s more or less to say that if they do happen, it’s on rare occasions.
If you do find yourself in a situation where you have been served with a protective order that also includes your children, you should immediately get counsel, and you do want to go to court and file something.
Most judges will take children off of a protective order if the parent filing a protective order fails to get an emergency custody order. That is if the protective order is against the other parent. Judges in Tulsa County are pretty good about that, and that is your recourse is immediately take it up in family court on a motion to enforce your visitation.
And obviously, you’ll want to show up for that protective order hearing to contest it. And you want to get a good lawyer involved who can argue, look, this is being misused as an attempt to circumvent the authority of the family court, and it should be denied. And if you do need help with this situation, you should go to Dads.Law