... Courts are easily manipulated by those pretending to seek protection from abuse because the political climate reinforces that men are abusers, and there is no penalty for false claims. Thus, they embolden applicants to use them for ulterior motives, such as to gain an advantage in divorce, to get custody of children easily without a family court hearing, or as a quick eviction process. Sometimes the motive is revenge or worse. For example, an order was issued against Brendan, father of two daughters, because he brought flowers to his child’s home for her 10th birthday right after he sought enforcement of a custody order that the mother was routinely violating. Brendan was literally accused of “sneaking” into the yard to deliver flowers, nothing more, yet a restraining order was filed against him. This order was later vacated by a court.
An applicant can get a domestic-abuse restraining order for just about any reason. A report from an organization called Respecting Accuracy in Domestic Abuse Reporting (RADAR) suggests that it is as easy to obtain a restraining order as a hunting or fishing license. You fill out the forms and tell the judge you are afraid, and you get an order almost automatically. RADAR states: “The law defines almost any interpersonal maladjustment as ‘domestic violence,’ the courts then establish procedures to expedite the issuance of these orders.”
The restraining-order laws of the several states are remarkably similar in their wording, as though an invisible hand were guiding them. They allow a woman to come to court secretly and claim that she feels fearful of “abuse” from a family member or person she lives with. The accused person is not there, and there is no requirement to notify him. There are no traditional rules of evidence, no opportunity for cross examination, no burden of proof beyond a reasonable doubt, no jury, nor even a necessity to have a story that makes sense.
Restraining orders also interfere with Second Amendment rights. Each state’s laws require that a defendant surrender all guns and ammunition, and violation of this provision is not only a state crime, but a federal one, under the Violence Against Women Act of 1994.
“Mike” was an Air Force officer in charge of a military police unit on base. When his ex-wife got a restraining order against him, he lost his right to carry a weapon and had to take a desk job. He had custody of their child, which the mother resented. She came to a child’s doctor appointment and attempted to create an incident, but was unsuccessful. However, the mother went to the local police to help her get an order. She told the police that there was no abuse and no history of abuse, so they wouldn’t get involved. She then went to the court in the adjoining state where she lived and claimed that there was abuse, and obtained a restraining order. Then, to cover her tracks, she went back to the police in the husband’s state and requested that they change her statement about no abuse. Eventually, he was able to remove the order, after hiring an expensive lawyer in the wife’s state.
Many police officers and military personnel who carry firearms are not so lucky, and have had careers permanently ruined by false allegations on restraining orders. In many places, once an order issues, even if it is eventually vacated, it is often impossible to get a gun license back.
Restraining orders especially impact the children. These orders are frequently used as a quick and dirty custody hearing, without the trouble of going to family court. In one minute, the father can lose the right to see his children for a year or longer. Children often get used as pawns in these situations, without any rebuke from a judge. While judges certainly know that falsely obtained orders are pervasive, they care little for the well-being of the children who are harmed by losing their father for long periods. The children often have no understanding of why they are being kept from their father because the father cannot even speak to them.
Here's an op-ed from Arizona, on the loss of Second Amendment rights when a restraining order issues:
Gilbert Mayor Steve Berman has neither been charged with nor convicted of any crime; yet a few days ago he was stripped of his Second Amendment rights.
Ditto for Steve Berman Jr.
The mayor obeyed a Maricopa County Superior Court order and turned his guns over to the Gilbert Police Department.
A court officer ordered father and son to relinquish their guns in issuing an order of protection that was requested by Berman’s wife, Michelle.
But there is no indication in Michelle Berman’s statement that a firearm has been involved in these disputes.
Berman Junior presents a more intriguing case.
Michelle said that he acted menacingly and bumped into her and accused her of killing his cat. She fears him and wants him to be prohibited from contacting her or approaching her.
Fair enough. But is that enough to deprive him of his Second Amendment right to possess firearms for self-defense?
That seems a stretch to us.
The issue has never made it to the U.S. Supreme Court. But in light of the high court’s landmark affirmation this summer of Second Amendment firearm possession rights, it should.
Read the op-ed here.
The problem of domestic violence is real, and many women (and some men) undoubtedly live their lives in fear of their spouses or significant others. The ease with which the legal protections afforded by restraining orders can be abused by spouses or significant others, however, is also a real and growing problem. As the first article shows, the problem is exacerbated by judges who rubber-stamp restraining order applications, even in the face of evidence suggesting that the person seeking the order is doing so not out of real fear for her safety, but as a tool to punish the other party or gain tactical advantage in divorce or child custody proceedings. In such cases, the ones who typically suffer most are the children, who often become pawns in the divorce and/or custody battle, and who are deprived of their father's ability to see them.
Another problem arises in the case of real domestic abuse, when a battered spouse with a restraining order realizes, often too late, that a piece of paper is no protection against a physically violent spouse, because such violent individuals often have no qualms about violating such orders. Indeed, the issuance of a restraining order may actually enrage the truly abusive spouse, making the possibility of harm to the holder of the order more likely. The usefulness of restraining orders as a protective measure against physical violence is thus quite limited against a truly abusive spouse.
The problem with abuse of the restraining order process has arisen because of the success of women's rights and feminist groups, in conjunction with a sympathetic media, in lobbying for laws that make the issuance of restraining orders easy, and that favor women over men. In addition, there is very little downside to a judge who issues a restraining order which is subsequently violated by a truly violent spouse, whereas the judge who denied the order in such a case will likely face the wrath of the media and feminist groups, who will say "if only the judge hadn't denied the restraining order ...."
Ironically, one of the unintended consequences of the gay marriage movement may be a wider public appreciation and realization of the abuse of restraining orders. As same-sex marriages proliferate in places like Massachusetts and California, I suspect we'll start to see women seeking restraining orders against their female partners in their divorce and/or custody battles. Laws favoring easy restraining order issuance may come back to haunt the very people who advocated for such laws. When women themselves become victims of improperly-issued restraining orders, we may begin to see a change in the mindset of judges and the media with regard to the current easy issuance standard.