The misuse and abuse of restraining orders in divorce and child custody cases is pervasive. Far too often one of the parties in a divorce or child custody case fabricates or exaggerates allegations of domestic violence in order to eject the other party from a common residence or to obtain de facto custody of common children by way of a restraining order. This abuse of the restraining order process is a disservice to true victims of domestic violence as it causes judges to view most plaintiffs with some degree of skepticism, regardless of the validity of their abuse allegations.
In Arizona, “restraining orders” are of two basic types, Orders of Protection and Injunctions Against Harassment. These orders are typically issued by Superior Court commissioners, city court judges, or justices of the peace, not family court judges. The procedural rules which apply to both types of orders are called the “Arizona Rules of Protective Order Procedure.” Injunctions Against Harassment are governed by A.R.S. Section 12-1809 and require no specific familial relationship. They may be granted when, for example, a neighbor commits a series of harassing acts against the plaintiff/victim.
In family law cases, however, the most common restraining order is the Order of Protection. Orders of Protection are governed by A.R.S. Section 13-3602 and are only available when certain relationships exist between the victim and the defendant. The qualifying relationships are set forth in A.R.S. Section 13-3601.A. Some of the qualifying relationships include the following: 1) marriage, cohabitation, or former marriage or cohabitation; 2) the victim and the defendant have a child in common; 3) the victim or defendant is pregnant by the other party; 4) specified blood and by-marriage relationships; and 5) a current or former romantic or sexual relationship between the victim and the plaintiff.
When a qualifying relationship exists, a plaintiff may seek an Order of Protection ex parte (without the defendant having notice or an opportunity to be heard). If the judge believes from the evidence presented by the plaintiff alone that the defendant has committed an act of domestic violence within the past year or that the defendant may commit an act of domestic violence, the judge will issue the order.
“Domestic violence” is defined to include any of the offenses specified in A.R.S. Section 13-3601.A. These offenses include, among others, assault, endangerment, harassment, stalking and the like. Orders of protection are valid for one year, but at any time while the order of protection remains in effect, the defendant is entitled to one hearing, at which the defendant may present evidence in an attempt to refute the plaintiff’s allegations of domestic violence and have the order of protection dismissed or modified.
Unfortunately, when husbands and wives decide to divorce or when unmarried cohabitants break up, one of the parties sometimes runs off to court to seek an order of protection, often exaggerating or entirely fabricating allegations of domestic violence. One of the plaintiff’s objectives in seeking an order of protection is often to remove the defendant from a common residence. Sometimes the plaintiff falsely alleges the defendant is a danger to the parties’ common children and asks the court to include the children as protected persons on the order of protection.
Many plaintiffs seek to include children in orders of protection NOT because they truly believe the defendant poses a danger to the children but rather because they want to obtain a de facto child custody order without waiting to have the family court judge properly address the child issues. Although an order of protection is NOT a child custody order, if the order of protection prevents one parent from having contact with the children, the order of protection has the same effect as an award of sole physical custody to the plaintiff without the defendant having any parenting time whatsoever.
Judges often grant orders of protection initially out of an abundance of caution. Following a hearing requested by the defendant, however, orders of protection are often dismissed. When children are included as protected persons on an initial order of protection, it is very common for the judge to modify the order of protection to remove the children as protected persons.
Every time a judge holds a contested hearing on an order of protection and finds that the plaintiff’s allegations of domestic violence were exaggerated or fabricated, I believe that judge will view the next plaintiff in her courtroom with a more jaundiced eye and may eventually refuse an order of protection to a true victim of domestic violence. Orders of protection should be reserved for cases where the plaintiff is a real victim of domestic violence or where the defendant’s conduct, not merely the plaintiff’s subjectively stated fears, indicate that the order is needed to prevent an act of domestic violence.
In divorce cases and in child custody cases between unmarried persons, the appropriate process to seek exclusive use of a common residence or temporary custody of children is a motion for temporary orders. The temporary orders process places the important decisions of child custody and possession of a marital home in the hands of the family court judge, who is properly vested with the authority to decide these issues in divorce and child custody cases. Except in cases involving actual domestic violence or real threats of domestic violence, orders of protection should NOT be used as a tool to eject an opposing party from a common residence or to obtain custody of common children.
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