Orders of Protection: The “Cry Wolf” Weapon in Child Custody Cases
Orders of Protection as Leverage in Custody Cases
Written by: Stefano Ceroni
It seems like half of every case that comes through our office these days involves one of the parties pursuing an Order of Protection against their ex; meaning, one of the parties is alleging that they, or their children, have either been a victim of domestic violence caused by their significant other or they have reason to believe they will become a victim if the order is not issued.
Now, although it’s inevitable that spouses and significant others contemplating separation will argue, in general, arguments alone rarely rise to the level of domestic violence that is contemplated by protective orders. Unfortunately, however, because of the significant impact that orders of protection can have, especially in cases regarding children, it has become commonplace for parties to pursue protective orders for the sole purpose of gaining leverage in their child custody cases.
This “cry wolf” strategy is clearly problematic.
As it stands, a party can get an order of protection “ex parte” (meaning without the presence of the other party) if the Court determines by a preponderance of the evidence (i.e. >50%) that an act of domestic violence has occurred or is likely to occur in the future.
Obviously, the concern is that although many of the protective orders issued are justified, because the burden of proof regarding their issuance is so minimal, more and more parties are taking advantage of the system by securing orders without just cause.
The Problems With Orders of Protection
The problem is, for many people, having an order of protection filed against you is more than just something that is embarrassing. In fact, depending on the nature of the allegations raised, certain professionals can lose their job as a result of the order being issued. For example, if you are a police officer or security guard and you are required by your job to carry a weapon, watch out, because certain protective orders will deny you the right to possess a firearm; a result which could lead to your suspension.
And, if that wasn’t harsh enough, parties are also allowed to list certain locations as protected addresses within their petitions. Meaning, if your spouse or significant other obtains an order of protection against you and then lists the shared residence as a protected address, guess what? They’ve just ousted you from your own house.
Lastly, with respect to cases involving children, parties often choose to not only list themselves as protected persons in their petition, but also list their children. When this happens, the opposing party is denied access to their children until such time as they can have the order modified or quashed.
As you can imagine, nobody likes being denied the right to see their children, especially before they are even given the opportunity to be heard.
What’s the Solution to the Problems With Orders of Protection
So, that’s the potential problem, but what’s the solution?
Well, I guess that’s the $64,000 question.
Some people believe that the problem with protective orders is that they do not actually require that an act of violence have taken place in order to be issued. Instead, all that is required is the reasonable belief that an act is likely to occur in the future. And, because that belief is largely subjective, the abuse of protective orders is an inherent byproduct of their current standard of proof. Accordingly, one proposed solution has been to require that an actual incident of domestic violence be alleged before the order can be issued (i.e. heighten the standard of proof).
But, will heightening the standard solve the problem? Or, will it just create more damage?
Generally speaking, the policy allowing for the issuance of a protective order before any acts of violence take place is usually thought to be a good one. Why? Well, it allows a person to protect themselves before it becomes too late. Meaning, without this protection, people would actually have to wait until they are assaulted before seeking an order that is meant to protect them from an actual assault.
See the problem with heightening the standard?
So, therein lays the Catch 22.
Either, (1) we heighten the standard and hope that preventable acts of violence do not occur or (2) we do nothing, and deal with the potential system vulnerabilities that are currently in place.
Fighting Orders of Protection
Anyway, before you decide where you stand on this issue, you also should be aware of the following:
Any party who has been served with a protective order can request a hearing at any time during the one (1) year period that the protective order is in place. AND, the Court must grant that person a hearing within ten (10) days of their request. At the hearing itself, the Commissioner (like a judge) will then decide whether to uphold the order of protection, quash (dismiss) the order of protection or modify the specific terms of the order.
That being said, just because a person is unilaterally granted a protective order doesn’t mean the opposing party is without any recourse. The problem, however, is that because of the current standard and because of the general presumption that it is better to be safe than sorry, protective orders are, depending on the facts, generally easier to uphold than to quash.
Nevertheless, when possible, courts do try to limit the overreaching effects of protective orders, even when they are upheld, by modifying (usually limiting) their overall effect.
For example, as discussed above, parties will often list their children as protected parties even though the incident in which they alleged regarding domestic violence did not directly involve the children. As prefaced, this is done for one of two reasons: either (1) the person genuinely feels that their significant other poses a real threat of physical violence to their common children or (2) they do it as a means of intentionally denying the other party parenting time and access to their common children.
Now, I know the second option may sound unreasonable to some, but trust me, people pull out all the dirty tricks when it comes to fighting over their kids.
So, in the case like the one above, even if the Court upheld the order of protection against the opposing party with respect to the Petitioner, without any evidence of possible danger to the children, it is likely that the Court would modify the order by removing the kids as protected persons.
The Issue, However, Is Still This
According to Arizona child custody (legal decision-making) law, if the Court determines that a party has committed an act of domestic violence against the other party, there is a rebuttable presumption that an award of sole or joint legal decision-making to that parent is contrary to the best interest of the child. So, even though the protective order may have been quashed with respect to the children, the fact that it is upheld with respect to the other party may still be significant.
Now, it is true that a family law judge will make their own independent determination as to whether a party committed an act of domestic violence when making orders regarding child legal decision-making and parenting time. Even so, however, no party wants to go into a situation where they are placed on the defensive because there is an outstanding protective order that has been upheld against them.
So, where does that leave us?
Well, I guess we are all left with facing the reality that the current system in place regarding protective orders is by no means perfect. As with any law, there is always the potential for misuse and abuse. Meaning, the only way to properly remedy the situation is to inform and educate people about the proper use and effect that these orders can have.
Ultimately, all we can hope for is that people who pursue orders of protection do so responsibly and reasonably.