Restraining Orders in Divorce

Restraining Orders in Divorce

Legal: Some Restraining Orders against Dads Used to Get Better Footing in Divorce

For years, the words “restraining order“ have conjured up images of abused women, cowering from their domineering husbands, but many in the father’s rights movement say that these same orders that offer honest women protection can also serve a more nefarious purpose in a custody battle.

It is very clear that restraining orders are being used inappropriately,” says Dr. Ned Holstein, executive director of Fathers and Families, a Massachusetts-based family court reform organization that hears every day from men whose lives have been destroyed by unjustified orders of protection. Of course, Holstein would not argue that domestic violence is not a very real, very pressing issue.

According to the Centers for Disease Controldomestic violence affects more than 32 million Americans, or more than 10 percent of the U.S. population. A spouse or domestic partner will batter each year, between one and three million women. Domestic violence, both physical and verbal, is the number one reason for divorce, according to a poll conducted by GfK Roper.

The results showed that about 36 percent of Americans polled said their divorce stemmed from verbal or physical abuse. That figure was higher for women —“ 48 percent. “We take domestic violence very seriously,” Holstein says. Still, he maintains that of the two million restraining orders issued each year, at least some of them are used to get a better footing in a divorce or custody case.

A restraining order is a court order made to protect people from threat of pain or injury.Both men and women can file them. Only one party needs to be present in the courtroom when a temporary restraining order is issued. Often this means, for man men, that the restraining order banning them from their home is a done deal before they even know about the filing.This order states that a person is to refrain from particular acts and to stay away from particular places, usually this means that whomever is being filed against must vacate the house shared by the family immediately or else be subject to arrest.

After the temporary restraining order is issued, there is a hearing a couple weeks later. At that hearing, both parties are supposed to be able to explain to the court why a more permanent order is or is not needed. If granted, a restraining order can remain in effect for a period of time, even several years. Obviously for a father, this means being restrained from his children as well.

According to Holstein, these permanent orders are almost always granted. “All evidence suggests that these hearings are just rubber stamps,” he says — and once they are, the accused is untouchable. “It is almost impossible to defend a man accused of domestic assault as it is politically incorrect to even question a woman who has accused a man of domestic violence.”

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This is what happened to Thomas Simon, a father of two from Iowa who has not seen his children since 2001, the year his ex-wife accused him of domestic violence. “My son just turned 11, and my daughter will soon be 15. I haven’t seen them since they were 4 and 8,” Simon says. According to Simon, he once caught his ex-wife reading a Web site that advised her to keep hitting her husband until he hit her back. By doing this, she could accuse him of domestic violence with a clear conscience.

“During the divorce, she admitted there was never any violence between us, but in an effort to halt visitation, which even the judge admitted she was trying to do, and for no good reason, she punched me on the forehead as hard as she could hoping I would hit her back. I didn’t,” Simon says.

Later, an altercation with his former father-in-law did result in violence when Simon was punched in the nose and mouth. “The resulting restraining order was only between me and her, and did not involve the children, which I welcomed because it would prevent her from instigating violence once again. Nevertheless, having this incident on record later helped her achieve her goal of eliminating me from their lives.”

Eventually, because of the accusations his ex-wife heaped against him, she was able to terminate Simon’s rights to his children. “Of course [the courts] concluded I ‘abandoned’ my children, when the truth is I would do anything for them and nearly seven years later still struggle very much with not being able to see them. The only thing I ‘abandoned’ was hope that anything other than gender and money would ever matter in Mahaska County, Iowa courts,” Simon says.

Simon’s story is not unusual, says Glenn Sacks, a men’s and fathers’ issues newspaper columnist, radio commentator, and blogger from California. “The divorce revolution put this on the table in a way that it wasn’t before,” Sacks says. Sacks argues for punishment for an accuser whose allegations are eventually proven false, especially when he says many restraining order hearings quickly become he said, she said. “How much proof is needed?” asks Sacks. “There has to be some judicial accountability, some reason, some factual basis for an order.”

Still, Sacks is the first to admit not all the men are innocent, although he does believe that restraining orders are often not adequate protection against the ones who are not. Family lawyer and author Lynne Gold-Bikin agrees with this part of Sacks’ argument. “Orders and the law are only there for people that respect it,” she says. “Still, something is needed. These orders exist because they were necessary.”

In her practice, Gold-Bikin says she has had to put women into hiding because of abuse. And while she admits that some women do abuse the system in order to gain ground in a custody battle or during divorce proceedings, most judges choose to err on the side of caution —” a tactic Gold-Bikin supports. “If you are the judge and you don’t do anything and then this woman is killed, then what?” she asks. “If you are going to err on one side, which side would it be?”

Further, Gold-Bikin explains that a withdrawal of allegations does not necessarily mean that the accused is innocent. “The guy comes and apologizes, she drops the charges,” she says.

Having seen both sides, Gold-Bikin is sympathetic to the men who have been victimized by restraining orders. Still, she says both men and women can get the orders and both can manipulate the system in that way if they choose. According to a 2005 study by Stephen Basile of the Fatherhood Coalition a Massachusetts-based non-profit that advocates for father’s rights, sex was by far the greatest predictor of whether or not a restraining order would be issued and of the severity of the restrictions imposed on the defendant. In his work, Basile found that women were 38 percent more likely to be granted an order of protection at the initial hearing than men.

“In fact, restraining orders are far more likely to be issued to women, rather than men. And when they are, it is as if a nuclear bomb has been detonated in these men’s lives,” says Holstein. For Daniel White of Texas, the bomb analogy could not be more apt. While he was serving active duty in the U.S. Navy in California, White’s wife took their infant son across the country to their home state of New York.She never came back.

While there, she filed a restraining order, alleging many violent acts White claims were entirely fabricated. In fact, the charges were later dropped, but the damage was done. She stayed in New York, where she was protected and White was unable to come to fight for his child because of the terms of the order. White has been unable to see his child outside of a courtroom for close to two years.

“Why was I separated from my child if there was no evidence at all?” asks White, who now lives in Texas while his wife (”the divorce is not yet final)” and son reside in New York. “Even if he could have visitation with his son, which is currently impossible given the distance, anyone who has been there knows it takes much more than a weekend here and there to raise a child.”

At this point, White says his anger is not with his wife, but with the system that allowed this to happen. Not only was the restraining order unjustified, he says, but also the acts she alleged took place in a state other than the one where the order was issued. “It was not in their jurisdiction,” White says. “The onus of proof should lie on the accuser, not on the accused.”

At this point, there is little for White to do beyond fighting and refusing to acquiesce to the system that he feels so betrayed by. “The state made my child an orphan,” White says. “They did this while I was in the Navy defending the so-called rights of the American public, including myself.”

About the author: Casey Clark Ney is a freelance journalist based in Boise, Idaho. She holds a B.A. in Communication and has more than six years experience in newspaper writing. Her Web site can be viewed at www.CaseyClarkNey.com.

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