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Video Transcribed:
I’d like to talk to you about a phenomenon that I see more frequently in court than I would like, and that is the abuse of protective orders as a tool to shortcut custody litigation. This Is something that should never happen. Point blank. It should never happen. Protective orders exist under the statute for a very specific reason. And that’s to protect individuals from domestic violence, threats of domestic violence, harassment, and stalking. That is the purpose.
However, it’s become a trend in Oklahoma courts, and this is a lot more common than anyone would be comfortable knowing, of people, and most of them, unfortunately, I’m sorry to say, and I hate to make this about, most of them are women going to court and alleging harassment or stalking, or some kind of threat as grounds to get a protective order, and getting it on themselves and the child, as a means to gain custody of the child in it, either because they’re anticipating custody litigation, or because custody litigation is already going on.
Now, the reason why women do this, or the reason why this happens is that the protective order gives them several advantages. First of all, when you file for a protective order, you get an immediate hearing that day on the petition, and assuming you can rewrite it reasonably enough that it meets the elements of the statute, a judge will enter an order temporarily, creating an emergency protective order.
And it’s a relatively low burden of proof. I mean, we’re talking about a preponderance standard, and in the case of the emergency, basically, if the allegations meet the statute, he’s going to enter that emergency order immediately, and it’s effective upon service.
So if she’s trying to either terminate your visitation or get custody, either if there isn’t a custody order, or if she wants to get custody away from you, she can go in and make these allegations in court. As long as it’s drafted the right way, the court will enter the order immediately. And now she has the child.
And the problem you run into is then, now, there is a short turnaround time on hearings, but again, as I mentioned, it is a low burden of proof. In many of these cases, it’s going to be he said, she said situation, and judges, unfortunately, will tend to err on the side of granting the order, if they have a question, even though the burden of proof is on the petitioner, they tend to err on the side of granting the order for the simple reason that they don’t want to wind up on the news if it turns out that they denied an order in a case where there was a legitimate problem.
Now, in Tulsa county, our judges will advise women too, if there is a minor child on the order, to go pursue an emergency ex parte custody order in the family court as well, and will tell them that if they fail to do so, the child will be dropped off the order.
However, in practice, this can take several months for that to happen. And in the meantime, you will be denied any access to your child. And unfortunately, a lot of women know this, and they will use this as a tactic. That’s the first advantage.
The second advantage is if a final order gets entered, and again, as I said, it’s a low burden of proof, if a final gift order gets entered, even if it doesn’t include the child on the order, that will set up a presumption that will work against you later in custody litigation, because under title 43, if there is domestic violence in the relationship, or stalking, or harassment, or if there are threats of domestic violence, there is a legal presumption that will work against you having custody. It is presumed that it’s not in the best interest for you to have custody or unsupervised visitation.
And the burden of proof on that is on those issues in domestic court is the same burden of proof as in a protective order court. So the court can treat the entry of a final protective order as prima facia evidence that this is what’s been going on, what sets up that presumption?
So the bottom line is there are certainly incentives, if a woman is looking to win custody of a child quickly, there are incentives to seek out a protective order, even if the grounds are shaky. And she risks very little by doing it too because there is a criminal statute that makes doing that a crime, but in my experience, I’ve never seen a woman prosecuted for misusing protective orders and trying to recover your attorney’s fees is extremely difficult, because the only way that a defendant on one of these cases, the only way you as the respondent can get your attorney’s fees is if you can prove affirmatively, one, that it was frivolously filed, and two, that there was no victim.
And again, in my experience practicing in this area, and I do a lot of these, I’ve never seen somebody successfully pull that off on a protective order filed as a shortcut to custody, even if they end up being the protective order. I mean, if she simply can’t meet her burden, that’s not the same thing as the court finds it’s frivolous, or that there’s no victim.
Short of her coming on and admitting that that’s why she did it, you’re probably going to be out of luck on that front. And the reason I’m saying this is an area of law that unfortunately the law has some holes in it.
I’m not going to sit here and say there shouldn’t be a protective order statute. And certainly, I’m not saying there aren’t cases where a protective order is appropriate, unfortunately, because of the fact that they’re easy to get, because of the fact that there’s very little to no consequence for seeking one out to gain custody in a situation where she’s looking at a difficult custody battle, and because if she is successful, there are high rewards. And another reward, by the way, is she can get her attorney’s fees both in the protective order and in future custody litigation if she can establish domestic violence.
And again, because the entry of that protective order could be a final order, or it could be considered a prima facie evidence of domestic violence, there are a lot of rewards available to try this, if you can pull it off and you’re successful, and the risk is low.
The statute does say that protective order courts are not allowed to modify an existing custody order. So you do have an argument against that, but again, you’re going to be forced to go and argue that before a judge, while in the meantime, she already has the children.
You’ve already cut out of their lives. And it’s going to take you time to straighten that out. And it’s going to cost you money. Your best protection against the situation is don’t give her an excuse. At the moment, that’s the best protection you have is don’t give her an excuse.
Be very careful what you say to her, do not get into a heated argument with her. If you are in a situation where things are contentious between you and her, then meet somewhere public when you do custody exchanges. You’re just going to have to be really careful to make it difficult for her to come up with something that could be bootstrapped into a protective order.
And then the other thing is, if you find yourself in this situation, you need to get a good lawyer involved quickly, and someone who’s going to be aggressive and really come at her hard. Because, unfortunately, if this happens, it sets up a lot of problems for you that it’s going to take a good aggressive lawyer to straighten out.
The other thing I’m going to tell you guys, I talk a lot about getting a good lawyer involved, call me, because I do this kind of litigation. And I think it’s important you want to get ahold of somebody quickly. I think this is one of those situations where you also need to get in touch with your legislature and start talking to them about making some reforms to the law because as it stands right now, there’s little to no consequence to women who do this. And it is unfortunately, mostly women, I don’t mean to sound sexist about that, but it is mostly women that are doing this.
I have yet to see a man do it. Now, I’m not saying I think that no men have ever tried it. I just haven’t seen it. But I have seen plenty of examples of women that try this. And in some cases they’re successful, but even if they’re not in the long-term, in the short-term, they get their way, and it helps them establish and set up a situation where, in the long term, they’re more likely to win in custody litigation. So in my opinion, this is an area where there is not a really good consequence for the misuse of these protective orders.
The laws heavily favor petitioners over respondents. And because a lot of the petitioners are women, they do favor women. So this is something where you guys need to get together, talk to your legislature. We need to get a ballot initiative going on this so that we can try to remedy this problem, where there is a weakness in the law because I do believe that’s a problem. And the only thing you can really do to try to protect yourself is just to be really careful what you say, what you put down in writing, what you do.
And then, if you get in this situation, get an aggressive lawyer right away and fight like hell. But the reality is there’s very little in the law to deter this sort of behavior. So it needs to be reformed. If you do find yourself in this situation, do give me a call. I will help you out. I will fight aggressively for you, and I will come hard. If you need help with a Protective Order in Oklahoma speak with one of our criminal lawyers Tulsa, ok at our office.
