Letterman Case Shows Problems with
Restraining Orders
By Jeffery M. Leving and Glenn Sacks

A Santa Fe, New Mexico judge recently granted a temporary restraining order against TV talk show host David Letterman for a woman who alleges that Letterman—who works in New York City and whom she has never met--has mentally harassed her through his TV broadcasts. According to Colleen Nestler, Letterman has caused her "mental cruelty" and "sleep deprivation" for over a decade, and has used code words and gestures during his broadcasts to show her that he wanted to marry her and train her as his co-host.

The woman, who also claims that Letterman and fellow celebrities Regis Philbin and Kelsey Grammer have been conspiring against her, requested that Letterman stay away from her, not “think” of her, and “release [her] from his mental harassment and hammering." 

Letterman’s attorneys were able to get the order dropped, and the judge--who apparently never thought to suggest to Nestler that she use the “off” button on her TV--has made good fodder for gossip columns and news of the bizarre. However, the case also demonstrates a much larger though rarely discussed problem—it is far too easy to get a restraining order based on a false allegation.

Beginning in the 1970s, restraining orders became a tool to help protect battered women. This is as it should be. However, in the rush to protect the abused, the rights of the accused are being violated on an arguably unprecedented scale. Many if not most domestic violence restraining orders are simply tactical maneuvers designed to gain advantage in high stakes family law proceedings. The Illinois Bar Journal calls the orders "part of the gamesmanship of divorce.”

A recent article in the Family Law News, the official publication of the State Bar of California Family Law Section, explains that the Bar is concerned that "protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody.” The authors note that protective orders 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.”

According to the Justice Department, two million restraining orders are issued each year in the United States. The vast majority of these are related to domestic violence allegations.  For example, according to California Attorney General Bill Lockyer, 243,401 of the 274,482 restraining orders currently active in California are related to domestic violence.

Such orders are generally done ex parte, without the accused's knowledge and with no opportunity afforded for him to defend himself. When an order is issued, the man is booted out of his own home and can even be jailed if he tries to contact his own children. This helps women position themselves as their children’s sole caretakers, which aids them in winning sole (or de facto sole) custody of their children in their divorce settlements. In California and other states, the order itself can be considered a finding of domestic abuse, making the restrained person ineligible for joint custody. 

Despite these grave effects, many courts grant restraining orders to practically any woman who applies. District Judge Daniel Sanchez, who issued the restraining order against Letterman, explained "If [applicants] make a proper pleading, then I grant it."

Research shows that these orders often do not even involve an allegation of violence. Usually all that’s needed is a claim that the person to be restrained “acted in a way that scared me” or was “verbally abusive”—what’s known as “shout at your spouse, lose your house.” 

A restrained person does have the opportunity to contest the orders at a hearing a couple of weeks later. However, these proceedings are often just a formality for which no more than 15 minutes are generally allotted. In fact, the State of California’s website gives the following advice for men who are contesting restraining orders:

“Practice saying why you disagree with the charges. Do not take more than three minutes to say what you disagree with. You can bring witnesses or documents that support your case, but the judge may not have enough time to talk to the witnesses.”

One study of restraining orders published in the Journal of Family Violence found that 94% of those brought by women in one Massachusetts district were extended.

Restraining orders turn ordinary men into criminals by forbidding many routine behaviors. Men are being arrested for violating their orders by such acts as: returning their children’s phone calls; going to their children’s school or athletic events; sending their kids birthday cards; or accidentally running into them at the park or the mall.

Cathy Young, author of Ceasefire: Why Women and Men Must Join Forces to Achieve True Equality, documented one case where a father of three was arrested for getting out of his car to pet his kids’ dogs when he picked them up for a visit. Later, he was fined $600 for returning a phone call from his son.

In another case, a divorced dad with no police record was convicted of a crime because he opened the door to the lobby of his ex-wife’s apartment building when dropping his then-five-year-old son off after a visit. When he refused to go to batterers’ treatment for this “crime,” he was sent to prison for six months.

Restraining orders generally only limit the restrained person’s contact with the protected person but not vice versa. As a result, husbands who have reconciled with their wives are being arrested during routine traffic stops for being in the same car with them. In one case, a father was arrested and jailed for three days for breaching a domestic violence order by taking his son to the hospital. The mother had called the father, said their son had been injured in a bike accident, and asked him to take the boy to the hospital. The conviction stays on his record and hurts his job prospects but he can’t get it undone.

Some men have been arrested and jailed after being tricked into violating their restraining orders. In one Seattle case, a man was jailed for three months after returning phone calls from his ex-wife, who showed the police the phone screen with the man’s number on it.  The man explained that when he received the messages he worried that something might have happened to his kids. He asks “what kind of parent would I be if I didn’t return those calls?”

Restraining orders have a particularly devastating impact upon law enforcement and military personnel. Under the Violence Against Women Act of 1994, individuals, including police officers and armed forces personnel, are prohibited from possessing a firearm if they are subject to a restraining order issued at the behest of a spouse or an intimate partner.  The 1996 Domestic Violence Offender Gun Ban expanded this prohibition to bar officers and service personnel from carrying weapons as part of their jobs. As a result, many police officers who are hit with restraining orders lose their careers.

The judicial system must devote far more time and resources to investigating abuse claims that are made in order to obtain restraining orders. Divorce proceedings should not be prejudiced by restraining orders, either as indications of guilt or for the purpose of setting custody precedents. And real punishments are needed for those who employ false claims.

Restraining orders are a legitimate tool to help fight domestic violence. Their use should not be permitted to turn our judicial system into a series of Kangaroo Courts. 

Jeffery M. Leving is one of America's most prominent family law attorneys. He is the author of the book Fathers' Rights: Hard-hitting and Fair Advice for Every Father Involved in a Custody Dispute. His website is www.dadsrights.com.

Glenn Sacks' columns on men's and fathers' issues have appeared in dozens of America's largest newspapers. Glenn can be reached via his website at www.GlennSacks.com or via email at Glenn@GlennSacks.com.