Family law attorney Liz Mandarano recently wrote a column for Huffington Post detailing some of the many problems with court-ordered restraining orders, which have become a potent offensive weapon in the hands of unethical attorneys and vengeful wives.
Although Mandarano argues that the orders can be effective tools, she exposes the fact that they are far too often misused as a tactic to gain an advantage in family law proceedings. Those of us who have been through a divorce already know this, but there remains a stunning amount of ignorance regarding these orders and how devastating they can be to men falsely labeled “abusers.”
Restraining orders often apply to both parties during divorce, e.g. one spouse may be ordered to refrain from disposing of property, papers or financial assets, but the so-called “stay away orders,” which eject spouses (almost always men) from their homes, are the most damaging.
Below are some of the effects she lists:
What does the accuser have to gain in misusing orders of protection? A lot of things, including the following:
Judicial requests for exclusive use and occupancy of a marital residence are not often granted, and can take up to six months for a ruling. Therefore, unless an allegation of threat of immediate harm is claimed, couples are forced to live under the same roof unless they can come to some form of agreement. Orders of protection force the accused to immediately leave the residence.
It sets a precedent for custody. Joint custody is presumed. However, if a permanent order of protection is issued containing a finding of domestic abuse, that finding cannot later be disputed. As a result, in many jurisdictions, there is suddenly a rebuttable presumption that the victim should have legal custody. Also, the longer a parent’s access to a child is limited, the less likely that person will be deemed the primary caregiver. In fact, often the accused spouse’s children are now afraid of their father. Many upstanding citizens are shocked to find themselves automatically subject to supervised visitation with a social worker. This may confuse children, wishing to “please” their mother, and scar them unnecessarily for life.
It serves as a bargaining chip–many men are forced to agree to a permanent order of protection either of the same or more limited scope in return for something else such as lower spousal support or more access to children.
It drains resources. It gives the accuser the upper hand in property litigation and spousal support. The ousted spouse has no access to their financial documents, tax forms, personal property, safe deposits, deeds, etc. Although he can always request from his wife’s attorney or the court that these items be made available, the process often takes time, and requests for compliance are often ignored.
It emotionally puts men on the defense. They have no access to their belongings and family. There is the mad dash to find a new place, new clothes, furniture, etc. He is now known as the “bad guy.” And, if he acts too aggressively to refute the allegations, it may make him suddenly seem more menacing. The innocent who are accused are therefore thrown into overwhelming turmoil from which it is difficult to recover.
It creates a windfall for the attorneys. Once a stay away order is issued, the parties cannot communicate with each other. All communications must therefore be carried out via the parties’ lawyers. As a result, there is a strong incentive for the less ethically minded lawyer to protract a legal battle by encouraging this tactic.
Essentially, if you get an order of protection against your spouse, you will win custody. That’s a powerful motivating factor. People can easily justify saying they are “afraid” under these circumstances, even if there was never any threat of imminent harm. An errant wife may well believe that when her husband finds out what she’s been up to (adultery, theft, plotting to rip off her husband), he will react violently, so she may well be frightened whether or not he would do such a thing, and genuine fear is pretty much the only standard for issuing these orders.
Having an order of protection granted stacks the deck so much in the spouse’s favor that she’d have to really screw up to lose the upper hand. They are a big part of the reason women continue to outright win in custody cases that might appear fairly even from the outset.
A few statistics:
A few recent studies examine this problem. One study found that 59% of allegations of domestic violence between couples involved in custody disputes could not be substantiated by the courts as true*****. A 2008 analysis of orders issued in one county in West Virginia concluded that 81% were unnecessary or false******. A 2010 review by Connecticut’s Judicial Department noted that ex parte orders increased over 25% from 2003 and 2004, and that nothing was being done to stop frivolous requests*******.
So why has Mandarano chosen to bring this up? According to her, the reason the judiciary hasn’t acted is because “…unfortunately, those raising this legitimate concern tend to do so using vitriolic rhetoric. Websites focusing on men’s and father’s rights abound, and most use bombastic language that pretty much undermines their point that these men are peaceful and non-threatening.”
I think that’s kind of funny, and totally backward. If it weren’t for the rising tide of angry men out there this problem would be ignored. There’s much profit in it, after all, and it’s ridiculous to think that attorneys like Mandarano would voluntarily give that up out of some altruistic change of heart.
She continues:
There’s pretty much no doubting my feminist camp allegiance, and it was a personal challenge to review many anger-driven websites and commentaries blasting women and still write this article and acknowledge that there is a systemic-wide problem.
Let’s drag out the old analytic mind here, and ask why it should be challenging to acknowledge that a “systemic-wide problem” would result in a great deal of anger. Seems fairly self-evident to me…
But leaving aside the petty slight of men who have every reason to be angry about what happened to them, at least Mandarano does seem to have some decent ideas for constructive changes. Personally, I don’t think they are enough, but they are a good start, and she ought to get some credit for trying.
Also, I think the angry men out there deserve some credit, too. If it weren’t for all of us out there bringing these issues up, they would continue to be ignored. It seems, actually, that we are starting to hit a nerve, and Mandarano does acknowledge that in a roundabout way.
