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Monday, May 24, 2010

Unlawfully Wedded Strife

Perhaps you've witnessed the scene before: Husband and wife go from destined to be together to destined to kill one another. That's just a typical day in Family or Supreme Court when marrieds decide that "happily ever after" is more like Cinderella's carriage turning back into pumpkin at midnight! The questions is, when does household strife call for an Order of Protection?

Many people incorrectly use the term "restraining order" when what they are really referring to is known in the great state of New York as an Order of Protection (hereinafter "OOP"). It may seem like an outdated or sexist stereotype that primarily women are the ones who need protecting from abusive spouses, but by and large, the majority of petitioners seeking an OOP are still women. When a client calls to ask whether or not this is something she should be seeking during the course of an ugly divorce or custody proceeding, I proceed with the utmost caution.

The problem as I see it, is that in order to err on the side of caution, many courts seem to hand out OOPs like candy on Halloween. Don't get me's CLEAR that for many women (and some men, lest I am criticized for generalizing) an OOP is a necessary instrument in safeguarding the physical and mental welfare of herself and and her children. But when is it simply a sword disguised as a shield??? In other words, are OOPs being handed out too frequently for alleged behavior that has caused these women neither danger nor fear of any kind? And are actual cases of abuse and battering being blurred or somehow trivialized due to the rising numbers of women who "cry wolf?"

This is a tricky and sensitive issue, and for many, because of their own very real and personal history of abuse, my words may seem harsh or unwarranted. But after seeing hundreds, maybe thousands of family court and divorce cases where the OOP is being used as a weapon, I am swayed that abuse is often exaggerated or wholly fabricated in order to gain a strategical advantage in a custody battle or divorce action.

There are two types of OOPs: Limited and Full. A Limited OOP (or LOOP) says that the person being charged must refrain from stalking, harassing, menacing, etc., the person who has sought the OOP. A Full OOP (FOOP) is also known as a "stay away Order," and it means just that. The person with a FOOP against them must stay at least "x" amount of feet from the petitioner/complainant's school, business, home, etc. The problem I see with such Orders is that often they are granted "ex parte" by the Judge, which means that Sally goes to the family court, files her emergency petition, and goes before a Judge where the person being accused is not even aware that such charges are being made against him (or her). Before you know it, the Officers come to get Sally's husband (or baby daddy, as the case may be), arrest him and tell him he has got to immediately get out of his home until further court proceedings occur. Due process? Not so fast...he must wait until another court date comes around (which can often be up to a month or so) so that the Judge and the Attorney for the Children (if there are children) can hear both sides and decide whether an immediate or real threat exists.

I am not against people in danger obtaining OOPs to attempt to protect themselves and their loved ones,but I will say that in my humble opinion ex parte OOPs are not needed nearly as often as they are granted. My general advice to a client calling me to ask if she should obtain an OOP...if you're not sure if you're really scared of him or in danger, then you probably aren't and should allow the legal process to unfold naturally, without muddying the waters with an OOP. Exaggerating your case will NOT help your case and in the end, you are doing harm to a system that was put in place for those who truly need such drastic intervention.

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