Protective Orders Can Be Used as Often as a Sword

 

Video Transcribed: My name is Brian L. Jackson, I’m a Dads’ rights attorney in Tulsa, Oklahoma. Protective orders can be used as often as a sword, as they can be as a shield.

In busy backlogged courts like Tulsa County, mothers can get a huge advantage in custody cases by obtaining a protective order. Although this is neither the intent of the law, nor the judge who is granting the orders, it is a fact that creates a huge incentive to claim or exaggerate domestic abuse, harassment, or stalking.

It has been made easier due to a change in the law that broadened the definition of stalking. The definition of harassment in the Protection from Domestic Abuse Act requires that the person’s conduct serve no legitimate purpose and actually cause substantial distress.

However, harassment was added to the statutory definition of stalking in 2010 without those requirements. So if a mother wants to obtain a protective order on the basis of stalking based on harassment, the irrelevant definition of stalking would be as follows: stalking means the willful, malicious, and repeated harassment of a person in a manner that would cause a reasonable person to feel harassed and actually causes the person being harassed, to feel harassed. Then the statute lists some examples of unconsented contact from which stalking can be established.

Two of which are contacting the individual by telephone and sending mail or electronic communications to that individual. I’ve seen emergency protective orders granted simply on the basis of a father requesting visitation with his kids. In today’s political climate judges would often rather initially grant 10,000 potentially frivolous protective orders, than risk being the judge on the news for denying a protective order against a homicidal ex-spouse.

What benefit does a mother get from claiming domestic violence or harassment? There are many. First, if the court finds that it is more likely than not that domestic abuse, which by statutory definition only requires a verbal threat or harassment occurred, there is a rebuttable presumption against that person having custody or unsupervised visitation. This is based on legislation that was passed in 2006.

Second, in custody proceedings, a victim of domestic violence or stalking, remember the definition of stalking now includes harassment, shall have their attorney’s fees and costs substantially paid for by the abusing party. This is from a law that passed in 2009.

Third, the protective order can be used to immediately take you away from your children, and then to delay your right to a hearing enough to alienate your children against you.

Protective orders are almost always initially filed as emergencies, which means that the other side does not get notice of the initial hearing or an opportunity to be heard. The first notice a father usually receives at the filing is when he is served by a Sheriff’s deputy, as he is being ordered out of his house and to stay away from his children. Because emergency protective orders are granted on an ex parte basis, meaning only the requesting party was heard, due process requires a show cause without delay.

These show cause hearings are normally scheduled by the court for hearing within two weeks of the emergency being granted. While waiting two weeks for your day in court might seem a reasonable delay, there is a procedural trick mother can use to further delay a full hearing for weeks, months, or even years.

In Tulsa County, if the mother or father file a custody case between the ex parte hearing and the show cause hearing dates, the protective order judge will consolidate the protective order to be heard in the custody case for judicial economy and continue the court date for a few weeks out on the custody judge’s docket. Before you know it, more than a month has gone by where it is illegal for you to be around your kids and you have not been given any opportunity whatsoever to defend the allegations against you.

Then it can get even worse. When you finally do get to your court date with the custody judge, it is going to be on a docket that is probably too full to afford you enough time for a hearing. It will likely be continued one or more times. Now you are looking at longer than two months without your kids before you get a hearing. Unless of course the mother also called DHS Child Protective Services on you.

Then your constitutional rights are damned. The court will attempt to continue the court date until DHS CPS has concluded its investigation. But don’t get angry. It’s enough to send any good father who cares about his children over the edge, but any display of frustration or anger can only be used to justify the protective order in the first place.

You have to remain calm, but concerned. You need an attorney who can get angry with you. One that can fight for your constitutional rights without the attorney’s litigious aggression being evidence of your poor temperament.

I represented one father who was in the middle of this type of scenario. The mother of his children filed a bogus protective order and months kept going by without any meaningful hearing. He got frustrated and fired his current lawyer and retained my office. We got him a meaningful hearing 10 months after the emergency protective order was granted against him. After extensive cross-examination of his ex, the protective order petition was deemed frivolous.

Make-up visitation was awarded and she was ordered to reimburse him for his attorney’s fees. But as you can, much damage had already been done to his relationship with his children. Justice delayed is often justice denied.

What can you do to avoid a protective order being used as a sword instead of a shield? First, do not give the other side ammunition to be twisted or exaggerated into a basis for a protective order. If she is attempting to instigate a confrontation, walk away. If she won’t let you, keep calm and document, videotaped journal, or conduct. Second, file first. Don’t give her time to plan and strategize for a custody case.

If you split, immediately filed for custody and visitation, then if she tries to claim past instances of alleged domestic violence or harassment, the claims will be widely scrutinized based on the timing. My name is Brian L. Jackson, I am a Tulsa dads’ rights attorney, I am here to help.