Fighting A Restraining Order's Low Burden Of Proof - Solutions Available To Fathers During Divorce

During a divorce custody case, you may end up fighting a restraining order

. Whilst not strictly ethical, it's the norm for divorce lawyers to suggest the strategic filing of an abuse allegation which grants an order on the thinnest of grounds. This has the effect of granting your ex immediate custody of the kids, and makes it much harder to focus on the wider custody battle. Basically, whilst you're swamped with paperwork, trying to figure out how to fight a restraining order, the custody arrangements battle is taking place - and, often, these decisions will determine the custody situation for many years ahead.

As a result, many fathers find themselves wondering how a temporary restraining order ends up becoming a permanent one. They fail to realise that two significant factors lead them into this phase of their situation:

* the incredibly low threshold for proof involved in these cases, and

* their failure to get the restraining order rescinded quickly.

To deal with the first issue - basically, most people assume that proof in custody cases where a father is fighting a restraining order involves "beyond a reasonable doubt". That's the situation for criminal cases, and popular TV shows often lead people to think it's the bar by which all cases in a court are judged by. However, this couldn't be further from the truth. Judges grant order filings as a routine (this is during an "ex parte hearing, which is why temporary restraining orders are sometimes called "ex parte" orders), defending this practice through "erring on the side of caution".

That's why you'll occasionally hear crazy stories about celebrities being stamped with an order to protect some crazy fan five states away, despite the fact that the two have never met - even though the judge knows the case is completely phony, these orders are still granted if the paperwork is submitted correctly. The talk show host David Letterman is one famous example of where this happened (a woman got an order granted against him to stop harassment through "coded messages on the talk show, along with eye signals"... simply put, there is just no proof required at the first stage. Some states even permit plaintiffs to telephone in a complaint, without even having to lodge the traditional paperwork!

Judges only pay attention to the merits of the case weeks later when a second hearing takes place, at which you (the defendant) will have their first and final chance to argue against allegations made by a sly ex-partner. More worryingly, if a father fails to figure out how to defend himself against a restraining order at this court hearing, or hires an inexperienced lawyer to do it on his behalf, the restraining order simply becomes permanent!

Too many fathers are being caught out by these two factors when it comes to obtaining custody of their kids. They don't even get a chance to fight "his word against hers" until the second court hearing, because the first court hearing grants the temporary order on his name without a single shred of defense, never mind evidence.

by: Adam J. Jenkins

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