Some Crimes Aren’t Even Enforced Most of the Time
Video Transcribed: There are crimes on the books that aren’t even being enforced most of the time. My name is Brian L. Jackson. I am a father’s rights attorney in Tulsa. I want to talk to you guys about a couple of examples of criminal statutes that at least in my experience, I haven’t seen enforced very often that maybe they need to be enforced more often.
Now, the first one of these I talked about in a previous video, had to do with protective orders and the filing of a protective order abusively to gain an advantage in custody litigation. That is in fact, a crime under Oklahoma law under title 22. And in fact, it does carry penalties. The unfortunate thing is, is at least in my experience, I have never seen someone prosecuted for that.
Now I’m not saying it doesn’t happen. I’ve just never seen it. There’s a reason these statutes exist. And there are certainly plenty of examples I can tell you about where I have seen protective orders being misused to gain an advantage in custody litigation. And unfortunately, there’s frequently no penalty for doing that.
Another crime that is rarely if ever enforced, is custodial interference under title 21. Now, if there’s a custody order in place, I will note that if someone violates a custody order, that is contempt of court, which is also a crime.
But there’s a separate crime specifically call custodial interference, which is if an individual unknowingly violates a custody order without a good reason or interferes with the observance of that custody order, that is in fact a crime.
And again, unfortunately, this is another example of a crime that in my, about nearly seven years of practice, I’ve never seen someone prosecuted for that, which is again, I’m not going to say no one’s ever been prosecuted for it. I don’t know that for a fact. I’ve just never seen it.
The unfortunate fact is in most cases if you’re dealing with a situation where your ex won’t let you see your kid, your remedies are the motion to enforce and contempt of court, which motion to enforce and contempt of court is certainly effective remedies.
I’m not saying they don’t work, but they don’t quite carry the teeth of a true criminal prosecution. Contempt kind of does. You can be put in jail for civil contempt. You can be fined, but it doesn’t create a criminal record in the same way as a true criminal conviction. And it doesn’t necessarily always wheel the same fear towards defendants.
And then, of course, there’s the fact that just because you can be put in jail doesn’t mean you will be put in jail. Although, that’s also true of criminal cases. This is another area where it would be my position that perhaps the legislature needs to step in.
Guys, there’s an old common-law rule that used to be available to individuals under the British common law. And it’s still available in a few states in the United States today called a private right of action in criminal law.
The idea is that a private party could prosecute certain crimes against other private parties, rather than relying on the state to do it. Now, this is somewhat of an old rule and it’s not observed in Oklahoma presently, but I would pause it to you on a limited basis, perhaps it should be.
When you have crimes like abusive protective orders, like custodial interference that aren’t being enforced that should be enforced because there is real harm going on. And I don’t think any of us who have either been around the family courts for a while or who have experienced this firsthand will deny the kind of harm that these behaviors in gender.
I mean, it’s harmful to children. When one parent denies the other parent access to the child, it harms the child’s relationship with that parent, which harms the child. If there’s no good reason for it. And abusive protective orders are costly.
Again, it can harm your relationship with your child if the child’s on it. It costs money to defend and it’s frequently money you can’t get back. It’s easy to spend a grand or more defending a protective order that you didn’t do anything wrong.
And the odds are unfortunately under the current legal environment, you’re never going to see that money back, very likely. There is a procedure to get attorney’s fees, but it’s an extremely difficult burden to make. And it’s not enough that the protective order was dismissed for the other side failing to make their burden. You have to show it was frivolously filed and there was no victim, and that’s a whole different situation.
And the burden of proof is on you to prove that. You can beat a protective order simply by blowing holes in her story. But that doesn’t mean you’re going to get your attorney’s fees back. In many cases, many of my clients, unfortunately, are not able to get their attorney’s fees back.
I can beat the protective order for them, but in many cases, it’s difficult to get the attorney’s fees back, honestly speaking, because there’s a difference between beating it and being able to prove that she filed it frivolously and abusively. And plus judges are just reluctant to sanction petitioners in those cases unless it’s obvious that they were being abusive.
So this is an area of law where having the option of a private right of criminal prosecution provided it’s properly controlled and limited, could be one possible solution to these problems. And guys, I would encourage you to think about that. And if you agree with me, talk to your legislature.
And if you’re dealing with one of these problems, your ex is denying you access to your kids, you’re facing a frivolous protective order in Tulsa, or you need any other kind of legal help, I encourage you to go to dads.law.