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Restraining Orders Can be Straitjackets on Justice

August 4, 2008

Women's advocates and the state Attorney General's office are criticizing a new court ruling which will make it harder for women to get restraining orders against their male partners. Star-Ledger columnist Fran Wood, in her recent op-ed "Don't soften protection for women," called New Jersey's Domestic Violence Prevention Act "one of the best statutes in the country," and said the new ruling could "diminish the ability of domestic violence victims to get the protection they need."

Certainly abused women need protection and support, but there are many troubling aspects of the DVPA's restraining order provisions that merit judicial and/or legislative redress.

Under the DVPA, it is very easy for a woman to allege domestic violence and get a restraining order (aka "protection order"). New Jersey issues 30,000 restraining orders annually, and men are targeted in 4/5ths of them. The standard is "preponderance of the evidence" (often conceptualized as 51%-49%), and judges almost always side with the accusing plaintiff.

Under the DVPA, the accuser need not even claim actual abuse. Alleged verbal threats of violence are sufficient, even though it's almost impossible for the accused to provide substantive contradictory evidence.

The restraining order boots the man out of his own home and generally prohibits him from contacting his own children. Men are cut off from their possessions and property, and some end up in homeless shelters. Yet most have never even had a chance to defend themselves in court. In recognition of the gravity of these orders, the Hudson County judge, Francis B. Schultz, found the current standard of proof unconstitutional, however, and required the stricter "clear and convincing evidence" standard in the case before him. His ruling was not binding on other judges, but will likely be appealed, which could lead to a decision with a broader impact.

There is a large body of evidence which shows that restraining orders are frequently misused. For example, the Family Law News, the official publication of the State Bar of California Family Law Section, recently explained:

"Protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody...[they are] almost routinely issued by the court in family law proceedings even when there is relatively meager evidence and usually without notice to the restrained person....it is troubling that they appear to be sought more and more frequently for retaliation and litigation purposes."

An article in the November, 2007 issue of the Illinois Bar Journal explains:

"If a parent is willing to abuse the system, it is unlikely the trial court could discover (his or her) improper motives in an Order of Protection hearing."

These orders have become so commonplace that the Illinois Bar Journal calls them "part of the gamesmanship of divorce."

Newark family law attorney Bruce Pitman says:

"Anybody who practices family law sees people who abuse the restraining order process. Some create false allegations or take minor or insignificant acts and use them to remove their spouse or partner from the home for advantage in litigation. Such abuses undermine victims of real abuse and violence who seek protection."

Opponents of the ruling point to the relatively rare instances where men have killed their female partners as evidence of why the current law should stand. While these cases are heart-wrenching, they do not constitute a viable argument against the new ruling.

For one, the new ruling does not eliminate restraining orders, but merely requires a proper evidence standard for their issuance. Moreover, it is highly questionable whether restraining orders protect genuinely abused women. A violent spouse intent on killing his ex is not going to be deterred from doing so out of fear of violating his restraining order. In many domestic violence killings, a restraining order was already in place. In general, a restraining order is only enforceable against a law-abiding, non-violent man.

Jane Hanson, executive director of Partners for Women and Justice in Montclair, argues that Superior Court Judge Francis B. Schultz is wrong in ruling that the DVPA violates parents' "fundamental" right to "be with or maintain their relationship with their children." Yet when a restraining order is issued, fathers can be (and sometimes are) arrested for calling their own children on the phone or going to their Little League games.

Moreover, by removing the father from the home, a custody precedent is set with mom as primary caregiver and dad as occasional visitor-a precedent which harms fathers' ability to gain joint custody of their children in divorce proceedings.

Wood calls the current law on restraining orders "an efficient system." We disagree. Yes, the system is efficient in separating men from their children and their homes. However, it is hardly efficient in delivering justice.

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Copyright ©2008 Glenn Sacks