Have you ever yelled at your spouse during a heated argument or touched your partner’s arm to emphasize a point in contention? If you’re like me and millions of others, you have—and you probably thought it was no big deal. And as long as your relationship remains strong, you’d have been right. But if that relationship is strained and/or you’re heading for divorce or separation, those simple actions could be deliberately misrepresented in court in a way that could result in your being removed from your home and temporarily—or permanently--prevented from seeing or spending time with your children.
Allegations of domestic violence or abuse that arise as part of divorce and separation proceedings are all too common across the country. In some cases, these allegations are backed by facts or evidence, and family courts should consider them when making important custody and support decisions. But in many cases one party—usually the one who is feeling most vindictive or who has tried to turn the children against the other parent--makes completely false and unsubstantiated claims of abuse as a way to “game the system.” The goal is to better her (or his) chances of getting the desired outcome, which is typically to get 100% physical and legal custody and keep the children from the other parent.
Under state and federal laws (including VAWA, the Violence Against Women Act), the term “abuse” goes beyond physical abuse and includes harassment, intimidation of a dependent, and generally interfering with someone’s personal liberty.
Blocking the door during a heated argument and yelling or touching your wife while saying, “Please stop. I love you!” may just land you in jail.
Once an allegation of domestic abuse or violence has been made, a judge can issue an emergency “order of protection.” The legal standard for issuing such an order is surprisingly low, considering the huge impact that it could have in both the short- and long-term.
An order of protection is usually a “no-contact” order, meaning that the person accused could be ordered by the court to leave the couple’s shared home and prevented from having any contact with the accuser or the children.
In the military, commissioned officers can issue a “military protective order,” restraining servicemembers, but those orders are generally effective only on military installations. That’s why many spouses seek civilian orders of protection instead.
After an order of protection is issued, even a mere allegation of a violation of that order by the petitioning party (for example, something as simple as having your friend talk to your soon-to-be-ex to try to get her to rethink the petition) could land you in jail. You could be arrested on a criminal charge—more specifically, a Class A misdemeanor—the most serious misdemeanor there is, punishable in many states by up to one year in jail and fined. If you’re convicted of a Class A misdemeanor for domestic violence while serving in the military, you will no longer be able to bear arms and your career may well be over.
Whether you’re in the military or not, if you’re served with an order of protection, it’s essential that you get a lawyer immediately.
In my practice, I’ve seen case after case where an innocent person ends up in jail because he had an ineffective experienced attorney (or didn’t have one at all). Defeating an order of protection and clearing your name is of utmost importance.
In some instances, supervised visitation could be allowed in spite of an order of protection, but in most cases, the person facing the abuse allegations and the children are kept apart entirely (at least initially). This is where a false allegation could potentially be bootstrapped into a disastrous result in a custody case. If the children are being legally prevented from spending time with their father, then their mother potentially has an unfair advantage in a contested custody proceeding. For example, later in the proceedings, she would be able to claim that since the children have been with her 100% of the time, changing custody to 50/50—or even allowing visitation—would upset their established routines and shouldn’t be allowed.
You can see why it’s so important to swiftly and effectively move to have an order of protection dismissed, vacated, or at least modified to allow extensive visitation in order to re-level the playing field in a contested custody proceeding.
Orders of protection can be broader than just “stay away” orders. For example, an order of protection can not only order the accused to stay away from a particular person or location (a residence, the accuser’s workplace, a child’s school, etc.), but also forbid the disposal of real or personal property or one party from taking the children outside the court’s jurisdiction. In that way, these orders could be a very dangerous and wrongful tool if used improperly.
The impact of an order of protection, if based on false allegations, can be broad-reaching in a separation, divorce, or child custody proceeding. Clearing your name and putting your best arguments and evidence before the court are crucial in getting the outcome that is best for your family. That’s why, if you have been accused of domestic violence in conjunction with any family court matter, you need the skill and experience of attorneys who have fought these battles many times before and have the ability and confidence to win no matter the odds. Keep in mind that to be accused of domestic violence, you don’t have to have committed an actual violent act. In many cases, claiming to be feeling threatened or unsafe is enough to start the process. If you find yourself facing such a crisis, don’t give up hope.
Jeffery M. Leving is a nationally recognized fathers' rights attorney based in Chicago, IL. You can find out more at his website, http://dadsrights.com/