Having an order of protection filed during a divorce can severely complicate matters and puts the target of the order at an immediate disadvantage. These orders allow the court to define what is considered acceptable contact between two parties, often including children, and are frequently issued on the most minimal of accusations.
Process of attaining a protection order
A protection order can typically be requested in the actual divorce case or in a separate county court, but state laws will vary. The first step is for the requesting party to go before a judge and state why they feel a protection order is necessary. Without input from the other party, the judge will determine whether the request is denied, or if a “temporary” protection order should be issued. (The requests for a temporary order are rarely denied, even with little evidence to support the allegations).
The court then schedules a return on the temporary protection order to determine if it should be made permanent. Both parties are present at the second hearing, but it is often very short with extremely limited time to make your case.
The purpose of protection orders is to prevent one party from suffering serious emotional or physical harm from another. Although that sounds like a pretty tough standard to prove and meet (which it can be for men), protection orders are routinely implemented on very minimal evidence. An example of just how easy obtaining a protection order can be comes from Cordell and Cordell Partner Barbara Johnson-Stern.
During one of her cases, a client’s wife accused the husband’s brother of “being mean to her on the phone.” The court issued a temporary protection order against the brother. This may be one extreme, but it goes to show that initial temporary protection orders don’t require much substance.
Reasonable factors for seeking an order of protection include physical conflict between two parties, violent behavior that is not directed at a person, such as punching walls or throwing things, very intense emotional conflict or any excessive violent or emotional conflict in front of children. Other factors that make it unsafe for a parent to be with children are also considered, for instance excessive drinking, drug use, exposure to persons that are unstable, threats against a person or threats of suicide.
Impact of a protection order
A protection order is designed to keep hostile parties separated and safe, and the implementation can result in someone being immediately removed for the home and children without any ability to return.
The contact allowed will vary depending on circumstances. It could be as severe as absolutely no contact at all, including keeping 500 yards away from where the protected party may be found and preventing an individual from attempting contact through a third person. It could also include reasonable contact, such as by phone or in person about certain things, like calling for the purpose of scheduling parenting time.
It is important to note that violating a protection order, whether it be temporary or permanent, is often a crime, and serious violations can be a felony on top of charges for the original infraction. This can be problematic because only one party is considered “restrained,” and the protected party is able to call the restrained party, show up where they might be, etc. without any repercussion. Any acceptance of contact in violation of the order is a crime, regardless of whether the protected person initiated contact.
The initial protection order can have a large influence on parenting time with children. This can be significant if children are young, and a lack of contact affects the relationship with the kids. If the court determines that a person is violent or unsafe, it can severely impact parenting time on a permanent basis and also prevent equal decision-making for the children.
Avoiding protection orders in your divorce
While the general purpose of obtaining an order of protection is to secure the safety and welfare of one party from a potentially dangerous situation of domestic violence, the ease of acquiring such an order and the potential effects on the outcome of divorce raise the potential for abusing the system.
To avoid having protection orders play a role in your divorce, the most important step is to avoid any and all conflict. Heated emotions and arguments are bound to arise, but remaining calm or avoiding such confrontations all together will go a long way. That is not always going to be possible, so if conflicts do occur and it is permissible by your state, record the incident with a cell phone or camera in order to help police document exactly what occurred.
If you anticipate your spouse will attempt to use a protection order to get you out of the house, there are a few precautions you can take:
- prepare an overnight bag in the event that you find yourself out of the house without any warning;
- maintain access to resources in case you need to stay in a hotel or rent a car for an extended period of time;
- work with lawyers to put a plan in place, or if really threatened, consider drafting a formal parenting plan so you have designated time with children if you need to move out;
- make copies of important financial account information or other files in case you lose access to them;
- inventory the contents of you home with video or photos; and
- protect important household items by removing them to a safe location.
Protection orders are an important safety precaution to keep people out of potentially dangerous situations. However, their effect on the outcome of divorce can make them a powerful tool, and all it takes is one overreaction to completely change the dynamic of your case. Ideally, avoiding any conflict is the best route to take, but being prepared just in case something does change is the next best step.