New Column: Restraining Orders Can Be Straitjackets On Justice
July 28th, 2008 by Glenn Sacks, MA for Fathers & Families
"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."
My new co-authored column, Restraining Orders Can Be Straitjackets On Justice (Newark Star-Ledger, 7/28/08), defends a recent New Jersey court ruling which raises the evidence standard needed to obtain a domestic violence restraining order.
To write a Letter to the Editor of the Newark Star-Ledger, a top 20 newspaper with a circulation of 600,000, regarding Restraining Orders Can Be Straitjackets On Justice, click on eletters@starledger.com or letterstotheeditor@northjersey.com.
To post a comment about the article, click here.
The column, co-authored with Mike McCormick, Executive Director of the American Coalition for Fathers and Children, is below.
Restraining Orders Can Be Straitjackets On Justice
By Mike McCormick and Glenn Sacks
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.
This column first appeared in the Newark Star Ledger (7/28/08).
Mike McCormick is the Executive Director of the American Coalition for Fathers and Children. Their website is www.acfc.org.
Glenn Sacks’ columns on men's and fathers' issues have appeared in dozens of the largest newspapers in the United States. He invites readers to visit his website at www.GlennSacks.com.
"));
19 queries. 0.371 seconds.
July 28th, 2008 at 6:30 pm
Restraining orders can never keep an angry crazed spouse away; they only keep the law-biding away. If they are so fearful, they should go into hiding or a shelter. Are there really 40,000 angry spouses in NJ ready to kill or maim their spouse? Fewer restraining orders means less work for lawyers, more children seeing both parents, no encouragement offered that one side will get everything and no deprivation of a child's right to both parents..
July 28th, 2008 at 7:07 pm
Another thing going on is that lawyers with divorcing clients (70% - plus are women initiating the filing) are fearful that they can be sued for NOT advising their clients to allege DV and seek a restraining order.
When a woman goes to a lawyer and says she wants a divorce, the attorney will tell her to do three things immediately --
(1) Clean out the bank account today and get whatever other assets are jointly held.
(2) File a restraining order and claim DV.
(3) If children are involved, claim abuse or neglect by the dad.
Of course, none of these claims need to be proved.
Islamic law has higher standards of legal proof than American Family Courts.
July 28th, 2008 at 7:12 pm
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.
==============================
Verbal threats should be sufficient to issue a restraining order. What better indication is there that someone plans to harm you-than they tell you that they are? Do you have to wait until they do what they threaten to substantiate or hope you have a witness or tape recorder handy when they make threats? Exactly how does one reasonably go about substantiating verbal threats? I would be willing to bet that while there are cases of people lying to get restraining orders to gain advantage in custody situations, these cases are more the exception, rather than the rule. If I a wrong, please show me some statistics on %'s of restraining order that are bogus. I know plenty of divorced couples in not so friendly divorces and have never heard of either party doing things like this-although unfortunately, I know there are some. Many judges are very sensitive to this area because of the many cases we hear about on tv where a spouse/partner has threatened violence numerous times, where the other spouse/partner has tried to get a restraining order and was denied-and then we read about these poor people (and sometimes their children) when the threatening spouse makes good on the threat(s) in the papers. No judge wants to be the judge that denied that person a restraining order. They also don't want to be the judge that separates a child from one parent because of false accusations. It is not such a cut and dry situation.
TF -many people do not go to shelters because they don't want to leave their children to have to leave their homes, friends and schools to go live in a shelter/hiding. Your statements on this subject show an appalling level of ignorance of this issue. BTW-restraining orders are FREE and you don't need a lawyer to file or obtain one.
I agree that we should have fewer restraining orders-the difficulty in this is determining how to go about it without jeopardizing safety of people with legitimate concerns and/or separating parents from their children unneccesarily/abuse of restraining orders.
July 28th, 2008 at 7:19 pm
Also, not all lawyers advise
1) clean out bank account
2) allege DV and take out restraining order
3) claim abuse or neglect by other parent
although I am aware of some that do, which is unfortunate (and they should be censored or something by the bar for advising such as a stategic advantage-without any basis in fact). Many states require mediation now when children are involved, which is good, imo, for the most part.
July 28th, 2008 at 7:27 pm
If you believed your spouse would kill or maim you or your children, would a rational person ignore it. A person acts upon what they believe or they don't believe. If you believed terrorists had poisoned your meal, would you eat it? If your house was on fire, would you stay as it burned down. If you expect your children would be killed or maimed would yu stay. Get real.
July 28th, 2008 at 8:35 pm
ML Says:
July 28th, 2008 at 7:12 pm
"I would be willing to bet that while there are cases of people lying to get restraining orders to gain advantage in custody situations, these cases are more the exception, rather than the rule. If I a wrong, please show me some statistics on %'s of restraining order that are bogus."
--------------------------------------------------------------------------------------
Please show me some % on restraining orders proven necessary?
I'm willing to bet if someone got away with an unnecessary restraining you would count it as legitimate.
How many of the 30 000 in New Jersey required proof? Either the number out of 30 000 or the percentage would suffice. Thank-you
July 28th, 2008 at 8:44 pm
TF -many people do not go to shelters because they don't want to leave their children to have to leave their homes, friends and schools to go live in a shelter/hiding. Your statements on this subject show an appalling level of ignorance of this issue.
What is an "appalling level of ignorance" would be for some one to prefer the "kill or maim"-TF scenario (as was responded too by ML) "because they don't want to leave their children to have to leave their homes, friends and schools." -ML
By the way you aren't really suggesting shelters refuse children like they would a man. Are you?
July 28th, 2008 at 9:31 pm
I have been married twice. I caught the first wife cheating in my own house. I had to break open the front door because she had put the deadbolt on. I called the police. The police made me leave. The next day she filed for a restraining order. I was kicked out of my house (temporarly), and could not see my kids. I hired an attorney that filed an emergency motion to dismiss the RO and get me time with my children. That was granted. The RO was dismissed, and I divorced her. My second wife and I both filed for restraining orders against each other, and she was granted a temp. RO. I was kicked out of my house in which I ran my business. I had to wait 2 weeks to go to a perm. RO hearing in which I was granted a perm. restraining order. In each case, they had no reason to get a restraining order. I was no threat to either one. I really don't know if it gets much worse than catching your wife in bed with someone else, the cops making me go to my parents house, and then her getting a temp. restraining order. At least it worked out in the end. The great thing that I had in my favor was the truth. The truth always prevails. Being able to prove it is the tough part.
July 28th, 2008 at 9:54 pm
ML says
"BTW-restraining orders are FREE and you don't need a lawyer to file or obtain one. "
MCA says, men are denied or in the least put in a hostile environment when they try to get restraining orders against women.
The shelters don't want any paper trails that show men want to be left alone from violent women. ( It doesn't fit the anti-male hysteria=funding archetype)
July 28th, 2008 at 10:02 pm
Is belief something you tell others, or is it what motivates your action? If you believe the wolf will eat your children; do you let him in? .Beliefs aren't something you tell to others; they are the things which govern your life. Most of those protection orders are not based upon the true beliefs of the applicants, but on the false advantages perceived to result form the application.
July 28th, 2008 at 10:23 pm
(TF) -- "Is belief something you tell others, or is it what motivates your action?"
Your very excellent question can be resolved by considering the notion of INTENTION.
July 28th, 2008 at 11:35 pm
The struggle between fathers' rights versus government rights can be compared to World War I and the emergence of this website is like General John Pershing's arrival in Paris.
"Lafayette we are here...."
July 29th, 2008 at 8:47 am
I've had personal experience with a false accusation and TRO. My ex bashed me in the head so hard I was nearly knocked unconscious. Reflexively, I threw my hands up to block a second blow, and accidentally connected with her.
She called police, I was charged with asssault and arrested. The charges were later dropped, but only after my life was destroyed, and I haven't seen my child for years. I tried to fight the false charges, but was refused a requested trial for 4 years, and also was forced to pay several different bonds for the one charge as it was dismissed then brought back into court over and over again. The domestic violence realm has it's own crazy system that I never was able to even figure out. I think they depend a lot on confusion, fear and intimidation to get most innocent men to accept a guilty plea.
Even though the charges were eventually dropped and I was eventually given court-ordered visitation, the judge has refused to ever enforce it or hold my ex in contempt. My exes pro-bono attorney has been allowed to use that false accusation against me every time I've tried to get my rights enforced. My ex moves around a lot and never gives me an address or phone number so I can have contact with my child. I've been able to find her a few times, and then filed motions of contempt of my visitation, but the judge took no action to force her to follow court orders.
In this county, they have a battered women volunteer that rides along to every domestic call. They immediately start telling the woman what to say to the police, what to claim on a TRO (feared for her life) and how their organization will give them cash, pro-bono attorney and anything they need to crucify their "attacker".
My ex later told me, "They said they'd give me cash and other benefits, so I lied and did what they wanted."
The biased way these false accusations are handled can absolutely end the relationship of a father and his child. It can also leave that child with the actual abuser---not just of the father, but also of the child. All the proof there was that my child was being neglected and abused in a violent home, was totally dismissed every time the opposing attorney brought up my arrest for assault. It didn't matter that it was a lie, that it had been dismissed, or that I was the one actually attacked.
That's how these insane laws that remove fathers from their homes and children are destroying much more than fathers' parental rights. They also endanger many of the children they're suppose to protect.
July 29th, 2008 at 9:47 am
HA,
Sorry to hear that you had to go through all of that. The DV establishment is very convincing and influential on police departments all over. My ex-wife (2nd) was the executive director of a DV shelter for women and children. About once a week she had a "DV" training class she would "teach" at local law enforcement departments. I would go with her to fund raisers, and she would stand at a podium and start shaking and crying telling this wild story of how she was a victim of DV. Never happened. She was enver battered, by me or her first husband. Like I said in my earlier post, I have a permenant injunction for protection against her. Because she is violent. But she has all of the procedure down, and instructs police officers over and over of "what to look for."
Another problem which it sounds like you found out, the DV system has all of the money it needs to go after you, and keep going after you. They probably kept pushing your wife to do what she did so they can claim another victim. More victims=more money.
I hope it gets better for you. Having a relationship with your children after going through this is harder, so keep trying.
BC
July 29th, 2008 at 9:48 am
My ex was cheating on me and using cocaine. When I began to confront her, she went to the police dept on a Sunday, and told the police I had threatened to kill her and our children... and the Judge issued an emergency RO against me.
That order was then extended for 15 days over the max allowed without a hearing. Then the order was dropped by another judge who stated it should never have even been issued, because there were never any grounds for it.
My ex knew exactly what she was doing... When we met, she had just had her ex before me thrown in jail for assulting her (I later found out, years later, that it was she who was hitting him and when he finally turned and hit her back, she called and had him arrested) He had a history of it, but I remember over-hearing her laughing about it on the phone with one of her friends...
Seems to be the norm kinda behavior these days with women from 30 to 40 years old....
BTW, nothing has ever been done about my ex filing a false report to get the restraining order or taking my children over state-lines to live with her and her druggie boyfriend for almost 6 months (I have custody now) But the courts have allowed her to continuously drag me into court on rediculous motions and myself and my family are now completely financially drained and just now begining a 2d custody battle she has started...
My question to everyone is... just how long are we all gonna sit back and whine but take no action about all these injustices within the family court system, etc.??!!
We can all sit here and write to these articles but, in the end... they make no changes... Only uniting & gathering with one loud voice will ever bring the much needed changes
Seems to me (in Massachusetts) the family court system is an absolute mess. I even see a woman who heads the "court-clinic" writing complete lies in a statement to the court. DOing her best to inconspiculously put my ex-wife in a better light than myself... when she has lied to her, and the court on numerous occasions that she was not using drugs, and many other things?!
I have had a judge say to me "As I remember it sir, you were both using" which is completely false, as I was the one who wanted the hair-follicle drug testing and I came back neg while the ex tested pos three times.
Also an important tape fo a court session does not exist because "someone forgot to turn the machine on that day" Pure incompitence!!!
It is really scary when you have to pray for the best when these people are in the power to make important, life-impacting decisions for you children's lives....
They also seem to have a real soft spot for drug users, and view them as the poor victims.... But to heck with the people who's lives they have destroyed over drugs....
I'm ranting.... sorry
July 29th, 2008 at 10:53 am
Bill C-
So true! Once the local DV center is involved, all sanity flies out the window. The police and judge do whatever the center attorneys want them to, regardless of the facts. It's impossible to keep fighting against an organization that has millions in tax dollars, pro-bono attorneys and the entire system backing them.
When she finally admitted she lied all along, nothing was done to her or the organization that knowingly helped her lie. I was still treated like a criminal and my rights were not enforced even then.
I've had some satisfaction in hearing that one of the police officers involved in shafting me was himself later falsely accused. Same thing with my worthless attorneys nephew. I like to hear of some of these lapdogs of the feminists getting a taste of reality themselves. It's the only way they'll ever really understand.
Paul-
I agree that stronger action is needed, but what would really change things? The TX courts are also a total wreck, as it seems like they are everywhere. I've written more letters and made more calls than I can count. Like you, I'm broke from years of useless court struggles, and feel defeated emotionally and spiritually.
I've been denied any contact with my only child, my parents only grandchild, and the sorrow is like an enemy that constantly surrounds my entire family because we all loved and miss my son so much, a huge dark hole is left where he use to be. The worse thing is knowing how much my child also suffers. Not even knowing where he's at, if he's being taken care of, is constant torture.
It's hard to explain, but we didn't just lose a child and grandchild. We also lost all faith in our country, in the system we use to believe in so strongly, and it's totally changed the way we look at everything now. We've been forced to harden our hearts in order to deal with the pain, and we seem to find no joy or happiness any more.
The truth is hard to accept-- there is no justice, the Constitution is dead and many Americans' rights just don't exist.
I do wish there was some way to change that.
July 29th, 2008 at 1:14 pm
I picked this right off of a local law firm's website. The don't even HIDE the fact that they are used for a "tactical advantage."
Temporary Restraining Orders and Injunctive Relief
A key to the civil litigation success we've enjoyed over the years at the Law Offices of [Dewey, Cheatum, and Howe] is our ability to move quickly for our clients in cases involving preliminary injunctions and temporary restraining orders in the earliest stages of a lawsuit. Not only can a TRO or preliminary injunction stabilize an inherently volatile set of circumstances, but a favorable ruling on a petition for injunctive relief can also represent an enormous tactical advantage for our clients.
I added the emphasis.
This is not uncommon on many law firms' websites... that's just how bold they are about it.
July 29th, 2008 at 1:19 pm
I promise not to post anymore of these, I'm sure you get the point, but look at this one which provides a laundry list of very substantial financial benefits for filing, as well as custody of the children:
The Law Offices of ["Laughem, Atta, Court"] offer free consultations on what rights you have and what you can do about your situation. In many instances you are entitled to significant benefits after a divorce if domestic abuse was taking place. Because no one should have to live under threatening situations you are able to claim several things if you were the victim of abuse. You can claim the house, finances, custody of the children, custody of any bank accounts or stocks and many other things even if you were not the primary employed spouse.
WHOOOOPEE!!! Where do I sign up?
July 29th, 2008 at 4:29 pm
If they want to keep the laws the same then when a RO is given out DURING a divorce then the spouse being thown out of the residence should NOT have to give a dime for pre-alimony and should have 50/50 access to the child(ren). If this happened I would bet that the number of RO's would decrease by 60% or more.
July 29th, 2008 at 4:38 pm
Another law should be that whenever a person is proven given false information or filing a false police report should automatically get 6 months in prison.
July 29th, 2008 at 4:55 pm
HA says
"My ex later told me, "They said they'd give me cash and other benefits, so I lied and did what they wanted." "
MCA say's, I believe the womens rape crisis center gave my false rape accusser alot of money for "emergency services needs", after she falselly accussed me of rape.
She never had to pay it back, because the police manipulated what the meaning of is,is, to try to hide the fact that she made a false rape accussation.
I believe we may have a civil rights issue when police jurisdictions prejudice against all men, in all courts in America, by hiding the true percentages of false rape accussations from the public.
July 29th, 2008 at 5:04 pm
Paul there is something we can do. Throw a few bucks to the guys that are pounding the floors of the legislature.
ACFC
Fathers&Familly
and my personal favorite RADAR
July 29th, 2008 at 8:50 pm
Here's a matching question for everyone :
Column A
Male
Female
Column B
Low burden of proof for wrong doing, high penalty L/H
Very high burden of proof for wrong doing, little penalty H/L
That my friends is the definition of asymetric conflict.
July 29th, 2008 at 8:59 pm
ML said - I agree that we should have fewer restraining orders-the difficulty in this is determining how to go about it without jeopardizing safety of people with legitimate concerns and/or separating parents from their children unneccesarily/abuse of restraining orders.
Its not difficult. Do what Judge Schultz had the courage to do, raise the standard of evidence off the floor to somewhere where there is a little transparency.
July 29th, 2008 at 10:02 pm
I always believed that in New Jersey a woman could wake up one morning and find that her husband hung the toilet paper the wrong way on the holder and piss her off enough to take out an order. That's how easy it is. Been there, went through it. All they have to do is go to Court and say that he threatened to kill me and bingo....he's out!
July 30th, 2008 at 4:28 pm
"Verbal threats should be sufficient to issue a restraining order. What better indication is there that someone plans to harm you-than they tell you that they are? Do you have to wait until they do what they threaten to substantiate or hope you have a witness or tape recorder handy when they make threats? Exactly how does one reasonably go about substantiating verbal threats?"
You don't just throw out standards of evidence and assumption of innocence because it is hard to come by. Domestic violence IS hard to prove, but that means it will require a cultural solution, not a legal one.
July 30th, 2008 at 4:29 pm
xxx because evidence is hard to come by
July 31st, 2008 at 3:48 am
Well until things change, males all around the world should continue the marriage strike.If millions of GEN X and Y woman miss out to bad they have done it all to themselves.
July 21st, 2009 at 11:39 am
NJ and elsewhere, we NEED to come together on this and show there is local support for this to go to the NJ Supreme court, this is a matter of constitutionality, due process, and protection of the family unit. This even goes beyond gender issues as I know of situations where even women have FRO's on them for frivilous reasons......
I want to gather local support for this in the first press release, and national support within a month. Please send me a direct email if your group supports this ruling and we want it to go to the supreme court.
October 14th, 2009 at 1:18 am
Whether the DVPA is constitutional or not. The california system granted a TPO for my wife on claims of domestic abuse depite the fact that We live in Nevada. She ran to CA filed the order even though NV DCFS investigated the claims and found them unsubstatiated. The Sherrifs here will not even report my SUV stolen because they would have to admit that they were wrong for giving it to her even though I owned i 4 years before we met and she was never on the title. I have not seen my son since June 28th and now my wife has vanished with him and even the Orange county Sherrifs cannot find her. No one will do anything. My lawyer tries but all his requests are denied. Hell I am not even allowed to change the locks on my house because she used to live here.
My wife is mentally unstable but puts on a good show for the judge. Her instability has been proven and she was supposed to have been getting treatment but stopped in april of this year.
I hope and pray that the fathers out there that read this take solace in that they are not alone in thier plight.
I aming starting to come to terms with the fact that I will never see my son again and he will grow up hating me.
October 16th, 2009 at 5:02 pm
I can't agree more. The mother of my children falsely obtained a restraining order against me. 10 days later in court, I produced enough evidence in the form of emails, txt messages, phone logs, and her own testimony that SHE LIED. It was thrown out. But it gave her the upper hand.....
I have been battling back every since, but I will gain custody of children. Once this chapter of my life is settle I will take up the battle against restraining orders. It is only time in America YOU ARE GUILTY UNTIL PROVEN INNOCENT. There should ramifications towards the woman who get them falsely. They should be told they will SERVE JAIL TIME if they are found to made false statements. This would stop some of the nonsense and they would be issued to the women who really need them.
November 10th, 2009 at 3:39 pm
oh guys... I hear some of you saying marriage strike, and while that seems like a safety move to make, it plays right into the hands of those very bitter veloceraptors who are at the center of this man-hatred,and who wish to destroy hetero marriage, the family, males, maleness.... What seems more realistic to me is to design an unassailable pre-nuptual agreement that details all of these possible legal footsnares, and eliminates them as a possible course of action should difficulties arise in a marriage. See, right now marriage seems dangerous and stupid, but if this ever balances out, and some reasonable common ground is discovered, men and women will marry again, hopefully in a non-toxic climate, as we really do care for one another, really do want the species to survive, really do have strong, innate, protective concerns for our children...