What to Expect at Trial on the Merits of a P.O.
Hi, I’m Oklahoma fathers’ rights lawyer Brian L. Jackson. So we talked about motion practice, we talked about discovery, we talked about the first court appearance. Now you’re down the road and you’re looking at trial on the merits. So what can you expect at trial on the merits on a P.O.?
As a preliminary matter, P.O.s are tried to the bench. That is, the judge is your finder of fact. You don’t get a jury. You don’t have a jury right. Now in Oklahoma, in theory, anything could be referred to a jury. But as a practical matter, I’ve never seen a judge set a jury trial on a P.O. I’ve never asked for a jury trial. I’m not particularly convinced there’s a huge benefit to a jury trial on a P.O. So you’re trying it to the bench is the long and short of it. Burden of proof is on the petitioner. That would be whoever filed for the P.O. in the first place. It is a preponderance standard, which means that if it’s 51% chance that she is right, then the P.O. will enter or should enter. If you go to trial on the merits, you’re not obliged to prove anything, but you would certainly want to be able to rebut or refute any allegations she might make in support of her claim for a P.O. So if she’s claiming you punched her in the face, you might want to have something there to show you did not, in fact, punch her in the face. And generally speaking, it’s good idea to have something more than just your word.
The Grounds for a P.O. and What She Needs to Prove
One thing to be aware of is you want to be very, very careful what you say on the record. As I reiterated before, and it bears repeating, it is really, really important that you understand that the grounds for a P.O., any of the grounds are also constitute crimes. And that does bring me to specifically what it is she would have to show.
There are four main grounds that you typically see in P.O. court that will be reasons for a court to enter a P.O. And those grounds are if there’s harassment, if there’s stalking, if there has been domestic violence or the threat of domestic violence. Now, domestic violence and the threat of domestic violence are pretty simple. Basically, you’re talking about domestic relationship of some kind, whether you’re talking family by marriage or blood, whether you’re talking about people that cohabitate, dating relationship, sexual relationship, things like that. That is where it would be domestic violence if there’s a violent incident between the two. Threat of that is exactly what it sounds like, where somebody’s threatened to do some kind of harm to the other person. And it has to be something that would be reasonably taken as a threat. And there’s a case law on that. If you want to read it, it’s the really seminal cases, Curry v. Streeter, where it talks about that.
Now, harassment and stalking are interesting. They have a specific statutory definition under Title 22. And basically, you’re talking about… Stalking is the unconsented to approaching, following, or contacting somebody with the purposes of causing intimidation, fear, or making them feel molested or stalked. That serves no legitimate purpose. Or the reason a person would find has that effect and that person does feel harassed, molested, frightened, or otherwise harmed by it. So there’s both a subjective and an objective standard. And harassment has to be between two people who are in a relationship. Stalking, if there’s a police report, does not. But with harassment, again, it has to be a pattern of repeated unwanted contacts that serve no legitimate purpose. And no legitimate purpose, by the way, is also an element of stalking. Now, where that’s important to understand is if you’re talking about contacts that had a legitimate purpose, that would not be grounds for protective order. And that is a defense. So the parent that won’t let the other parent see or talk to their kids and that parent is trying to reach out and trying to reach out and trying to reach out until it exceeds a certain point, generally speaking, that is not harassment and it is not stalking because that is a legitimate purpose. However, if you’re dealing with a parent who is really obstructionary in that manner, probably your best bet would be to get an attorney and that will be a topic for a future video. But the point I’m getting at is it has to be something where it serves no legitimate purpose. And it’s her burden to prove that. And she has to prove each and every one of those elements up by preponderance of the evidence. If she does that, she gets her P.O. If any one of those elements fails, she does not.
Preparing for Trial and Finding Legal Representation
If you are talking about going to a trial, it is important that you get good legal representation. And it does require preparation. You don’t go into trials and fly by the seat of your pants. You want to have all your exhibits ready. You want to make sure the other side has copies of your exhibits ahead of time. You want to make sure that you know exactly what you’re going to say on the stand so there are no surprises. And you have some idea of what the other side is likely to ask you again so you don’t get blindsided. And you want to know at what point in time you’re going to do what’s called pleading the fifth, which is exercising your right against self-incrimination if you get asked a question that would have the risk of jamming you up criminally. And again, this is where you need a really good lawyer.
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