About 25 percent of divorces involve an allegation of domestic violence. Restraining orders and tales of abuse provide powerful leverage in family court.
Research shows that a high percentage of restraining orders are issued for trivial or trumped-up reasons. Half the time, no physical violence is even alleged. Yet judges issue the orders and let the chips fall where they may.
The definition of domestic “violence” has been watered down
We do not mean in any way to downplay the plight of victims of physical or sexual abuse. Domestic violence is a real problem. However, the threshold for what constitutes domestic violence — especially in the issuance of restraining orders –has become broad and vague. In 32 states, the statutory definition includes feelings of fear or emotional distress, even if the subject has not committed any physical assault or threats of violence.
This makes it easier to get restraining orders, also known as protection orders or domestic violence injunctions. An estimated 1 million final restraining orders (“permanent” orders) are granted each year in the U.S.
By some estimates, the allegations are false or frivolous in 70 percent of all domestic abuse complaints. Perhaps it’s not that common. But any judge will acknowledge that false and exaggerated accusations of domestic abuse are used strategically in divorce or custody proceedings.
All it takes is an allegation
Temporary restraining orders are inherently unfair, if not downright unconstitutional. The TRO is issued without the subject’s knowledge or notification, and with no opportunity to rebut the accusation. On an unproven allegation, you can be:
- Removed from your own home and possibly jailed
- Prevented from having any contact with the alleged victim
- Cut off from your children indefinitely without so much as a good-bye
- Stripped of your right to possess or purchase firearms
Why is due process suspended in these situations? Law enforcement and the courts take domestic violence seriously. They give the complainant the benefit of the doubt. No judge or police officer wants “blood on their hands” if a TRO might have prevented a murder or aggravated assault. So they err on the side of extreme caution.
Don’t let the restraining order become permanent
The temporary order is granted largely on the victim’s say-so, no matter how patently false or exaggerated the allegations may be. But then the justice system does kick in. A court will hear arguments for continuing or vacating the protective order. That hearing is typically held within 14 days. You need to get legal counsel right away and you need to adhere to the terms of the TRO.
If it says “no contact” then do not call or text that person. Do not drive by the house or go to their workplace. Do not try to get a message to them through third parties. It’s unfair. It’s frustrating. But you will dig yourself a deep hole by violating the order — even if you did nothing to merit the restraining order the in the first place. Don’t fall into the trap!
The restraining order hearing is your opportunity to refute the allegations and to tell your side of the story. You want to avoid a permanent restraining order at all costs. In almost every state (including Florida), the family courts are required to consider domestic violence when awarding child custody or visitation.