The Worst Thing a Woman Can Do - Abuse Orders of Protection
According to the U.S. Department of Justice, there are between 2 and 3 million temporary restraining orders, also known as orders of protection or stay away orders, issued annually in the United States. Although orders of protection are critical to the safety of many, it is an unfortunate truth that because they are so easily obtained, they are often misused, specifically against men during a divorce proceeding.
“In order to receive a temporary "stay away" order of protection, one needs only to allege that he or she "feels" threatened by their partner. There does not need to be any history of domestic violence, an actual verbal threat of domestic violence or evidence of a major overt act, such as stalking or purchasing a weapon,” said Liz Mandarano, a Manhattan family law and divorce attorney at Bikel & Mandarano, LLP and frequent blogger for the Huffington Post Divorce Vertical.
In matrimonial practice, men are more likely to be the spouse who has an order enforced against them at the beginning of a separation or divorce. The order forces the accused to leave the marital residence and stay away from his partner, home, workplace, and family, or face prosecution. Notably, stay away orders can remove a person from his home even if his name is on the lease or deed.
Orders of protection are issued ex parte, which means the accused has no notice of the proceeding and does not have the opportunity to defend himself, prior to its issuance. The burden of proof is the lowest legal standard available; the judge has to believe that there is a 51% chance that the allegations are true.
A temporary order of protection lasts until the accused has the opportunity for a full court hearing--which unfortunately does not necessarily get scheduled for up to six weeks. Due to clogged judicial systems, sometimes a full hearing can take months.
Many women use orders of protection to force their husbands out of their homes, deplete him of his resources giving them the upper hand in property litigation and spousal support and set a precedent for custody.
In 2005, The Family Law News, California State Bar's official publication in the field, noted that the state issued an average of 250,000 orders of protection annually. Also in 2005, Family Court Review found that 59% of allegations of domestic violence between couples involved in custody disputes could not be substantiated by the courts as true.
Liz Mandarano offers a series of solutions for judges to address the problem:
- Study the issue in a non-partisan manner to assess how prevalent the problem truly is. Pointing the blame at a particular political or social group is unhelpful.
- If the jurisdiction allows for it, concerned men who anticipate that their partner or spouse plans to misuse the system should tape record conversations. Such recordings have saved many innocent persons from losing their homes and families.
- In complaints, incorporate stronger language delineating the penalties for perjury.
- Treat temporary orders similar to criminal charges by requiring an "arraignment" relative to the charges within a 48-hour period.
- At that preliminary hearing, if an initial threshold is met, allow the accused to list necessary personal items and valuables at the residence and order the accuser coordinate their release within a specific timeframe.
- Award attorneys' fees for motion practice to recoup personal property that is not timely released.
- Because no judge likes to overrule herself, assign different judges to hear a temporary and permanent order of protection.
- Require corroborating evidence for permanent stay away orders where there is no prior history of domestic violence and there is no allegation of actual physical harm.
- Allow any finding of abuse of process to be relevant in custodial considerations.
Liz Mandarano adds, “This is a systemic-wide problem that needs to be changed. This false practice clogs the system unnecessarily, preventing true victims from having their cases thoroughly examined and depleting victim-assistance resources.”
Lisa Gordon
HJMT Public Relations Inc.
631-393-0220
lisa@hjmt.com
Bikel & Mandarano, LLP is a midtown Manhattan-based boutique law firm devoted exclusively to matrimonial, divorce and family law as well as related legal matters such as estate planning. The founding members, Dror Bikel and Liz Mandarano, have a unique combination of strong trial experience, effective negotiation skills, and attention to detail that achieve the best resolution possible. As a boutique venture, the firm seeks creative solutions and invests all of their resources to provide their clients depth and scope of legal expertise in their specialized practice. For more information visit www.bikellaw.com, call 212 682-6333 or email info@bikellaw.com.
Tags: