Use and Abuse of Orders of Protection

An Ex Parte Order of protection is granted where there’s the preponderance of evidence that abuse, or the threat of abuse, is present. In the petition for such an order, the filing party must be very specific about abusive or threatening behavior that has occurred. There also must be reason for you to believe the abusive or threatening behavior will occur in the future.

In my state, the party filing for an Order has the right to ask for an award of custody, as well as an award of child support and maintenance. There are also opportunities to ask the Court order counseling or other educational classes to stop abusive and threatening behavior.

If an order is issued, there is oftentimes a requirement that the parties stay a certain distance away from one another. There can also be a limit on communication between the parties. If pled for, there could also be an award of custody or child support. It’s important, if served with an order, to read it thoroughly and understand if there are any restrictions on communication. The last thing you want to do is violate an order of protection before you’re called to Court.

If an order is issued, you will have a court date within a fairly quick turnaround time. In Missouri, if an Order is issued, per the statute, you must be heard before the Judge within 15 days from the date of filing of the Order. R.S. Mo. §455.040.

Ex Parte Orders of Protection are properly used where there is a genuine fear of abusive or threatening behavior. Or, if there’s stalking behavior occurring, an order is also proper.

Unfortunately, there are times when such orders are not proper, which will be discussed below.

Ex Parte Orders of Protection are criminally enforceable, and a violation of said order is a misdemeanor. These orders have “teeth” to be able to insure someone who is viably threatened can be adequately protected. For example, such orders are useful where there is a fear of physical retribution for filing for divorce, or when a separated spouse has found a new partner and the other spouse has difficulty accepting that fact.

Oftentimes, however, these orders are used as a sword rather than a shield in dissolution of marriage cases. Orders can be filed prior to a party filing for divorce in an attempt to gain an advantage regarding property distribution, child custody, or child support.

For example, orders may be filed prior to filing for divorce in an attempt to win sole possession of the martial residence. I have also seen plenty of cases where the Wife files for such an Order, but requests that communication be allowed to continue, so that she can continue to call Husband and ask for money, all the while keeping him from the home.

Oftentimes, if an order of protection is filed after a petition for dissolution of marriage is on file, the Court is reluctant to grant an award of child custody or child support. The logic is that the family court proceeding is the proper place for such a determination, and the dissolution of marriage statutes provide much more guidance on that issue than the ex-parte statutes.

The best advice if served with an Order of Protection, keep track of any and all communication you have with the other party since the time of service. It speaks volumes to the Court if, for example, Wife claims abusive and threatening behavior but continues to call the Husband every day despite the presence of an Order of Protection. Also, be sure to have any witnesses available to testify at your hearing regarding your demeanor and your behavior. If you’re accused of having a temper, it’d be helpful to your case to have someone at Court who will testify that you always keep your cool. You will also need to be able to prove, if removed from the home, why you can’t afford to live outside of the home and why you’re the one who should be allowed to stay.

If you’ve been served with an order of protection, call an attorney immediately. He or she will know how best to help prepare your defense, and if necessary, position you to file a petition for dissolution.

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