Restraining Order Abuse versus the Bill of Rights

Your Rights

Your rights my be impinged if facing a Restraining Order.
Your rights my be impinged if facing a Restraining Order.

No Rights When Fighting Restraining Order Abuse

Because the burden of proof required to obtain a restraining order has been lowered in recent years, the very ease with which such an order is granted has caused erosion of the civil rights of those who often unjustly stand accused.

Increasingly, restraining orders have been abused by those claiming negligible or unsubstantiated fears of violence for entirely different personal reasons.

Judges have proven quick to grant restraining orders for fear of the bad press which would follow if a truly needed one were not granted and resulted in an act of violence. Thus, they tend to strongly condone orders where such need is weakly presented.

Sadly, such "legal abuse" of the new laws is directly at odds with civil liberties defined in the U.S. Bill of Rights. For instance, it has become a very potent tool, improperly applied, to gain leverage in divorce proceedings.

The future ex-spouse singled out makes a particularly vulnerable "victim" of this type of abuse, because often limiting contact with a spouse or former spouse also comes with limitations on contact with any children of the marriage. Obviously, this is often confusing to children "caught in the middle" of a contentious divorce involving restraining order abuse.

Note that not all restraining orders constitute "restraining order abuse". Indeed, there are true victims of domestic violence who need to be protected from contact with their victimizers. Howsoever, this article (hub) is written for the increasing numbers of persons who are accused of being domestic violence perpetrators by accusers seeking the upper hand in divorce or as a method to harass their target in about the most vindictive way possible.

It is far easier for a party to get a restraining order now than ever before because both federal and state laws have recently changed reducing the burden of proof needed to get them. These changes were in a noble effort to protect domestic violence victims, however, quickly came to the attention of unscrupulous divorce "family law" lawyers as well as savvy litigants .

The burden of proof that a restraining order is not reasonable or the terms of it are not reasonable has largely shifted to the recipient who must then fight for their rights through lengthy court proceedings and expensive legal representation while simultaneously being homeless and having their personal property under the control of the accuser. The resulting hostility between divorcing legal combatants can be tremendous and easily can spill over to affect their innocent children.

RO Abuse and the Bill of Rights

Those on the receiving end of restraining order abuse typically find it to be extremely difficult to deal with virtually all aspects of their lives in the following ways:

  • Hardship obtaining access to home and property as is presumably guaranteed by the 4th Amendment.
  • Near complete disruption in their lives while sorting the mess out in a massive bureaucratic legal machine. One's right to a speedy trial as is guaranteed presumably by the 6th Amendment has become a sham. Violating a restraining order does have criminal penalties, not civil penalties, but civil cases often take longer to resolve in general, particularly divorce proceedings.
  • Restraining orders are often brought about with negligible evidence or, effectively little due process at all. In addition, the accused person cannot even face their accuser, i.e. "be confronted with the witnesses against him" as specified in the 6th Amendment.
  • The tarnishing of one's reputation when frivolous restraining orders are brought against them. Lengthy and expensive court battles to clear one's name can ensue when a person decides to go through the legal maze to do so. Again, a hit against the 6th Amendment. This is also a hit against the 4th Amendment, which reads in part: "...and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation...". Although the complainant may have testified on a police report that they are "fearful" of the respondent, probable cause is often not established by any physical evidence or with other witnesses whatsoever.
  • Difficulty seeing their children, a phenomenon often called "Parental Alienation" is more and more a resulting fallout in such cases. This violates the 4th Amendment "right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures".
  • Those accused in restraining orders are denied their access to their own firearms, as is presumably guaranteed by the 2nd Amendment. This can be devastating to one who is required to use a firearm at work. Without due process, they are now portrayed as violent perpetrators of domestic violence and denied use of a required tool for work.

Our founding fathers did not wish to see these types of actions incurred in the new United States. Although the Bill of Rights includes only the first 10 of the Amendments, Read this succinct excerpt from the 14th amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Controversy

This topic remains controversial because there is clearly a need to protect women (and some men) from domestic violence situations, however many restraining order injunctions appear to be misused as one form of "divorce dirty tricks".

A Wikipedia page for "restraining order abuse" had existed from April 2006 until recently, however, was removed because its neutrality has been debated. Since those who really do need protection from abusers may lose their lives if they don't get it, there is considerable debate. But action to change these laws due to documented abuse of them seems imminent.

In the mean time, a variety of cases have come to light of restraining order abuse including one highly publicized by talk show host David Letterman who defended himself publicly on his own show. Obviously, few average citizens have access to this type publicity to defend themselves.

Mostly spearheaded by "Men's Rights" groups and "Father's Rights" groups, nonetheless women can find themselves at jeopardy fighting frivolous and heavy-handed restraining orders. Children do not see parents accused ex parte (not present to defend themselves) while the divorce "family law" industry convolutes the intentions of the new laws and lengthy court battles insue. Financial ruin also often accompanies those hog-tied by the new "legal machine".

Those who do unequivicably benefit regardless of outcome remain the divorce industry. Of course any lawyer who is championing a legal maze will do so profitably.

 

What you can do if *Accused in a False Restraining Order*

There are many examples of a men and women accused falsely in a restraining order by his spouses. The man I think of suffered estrangement from his children (including mandated parental supervised visits), an emotion-filled legal battle, the shouldering of extremely expensive legal bills, and denial of access to his rightful property (including firearms).

To see what innocent parents go through: use google to find many egregious cases.

Also see my other hubs,

Divorce Dirty Tricks--Restraining Order Abuse

and

Restraining Order Abuse 101

More by this Author


Comments 29 comments

Johanna Smith profile image

Johanna Smith 6 years ago from Fort Collins, CO

Suspension of civil rights. Unreal..


Laura in Denver profile image

Laura in Denver 6 years ago from Aurora Author

I think the founding fathers are turning over in their graves.


Bella DonnaDonna profile image

Bella DonnaDonna 6 years ago from New Orleans, LA

So much for constitutional rights. I wonder what if anything ACLU is doing.


A mom  6 years ago

Men are increasingly using this tatic on women now to get control of child and not pay child support.


Laura in Denver profile image

Laura in Denver 6 years ago from Aurora Author

The fact that the burden of proof is so LOW to obtain a RO makes abuse of them VERY EASY.

"What this criminal lawyer has seen over the past 20 years is that false reports of domestic violence have mushroomed." is a quote from Web page:

http://www.avvo.com/legal-guides/ugc/false-complai...

If there is a way to EXPLOIT a law, savvy litigants and unscrupulous lawyers will surely abuse it!

I would be interested in hearing more about this particular facet of RO abuse, however....


Ninja 6 years ago

I am living this nightmare right now. My husband was the abusive one, he went and got a restraining order against me to get the upper hand to obtain the marital house and not pay child support. It has been 3 months and I still am without my personal property. He has everything, I have had to buy everything new. This to me should be considered theft, but it isn't. He will never face consequences for his lies to the courts.. he is a cop, so much for justice.


Laura in Denver profile image

Laura in Denver 6 years ago from Aurora Author

Dear Ninja,

The average divorce takes one year, but you should be able to get quicker resolution on your personal property with a police assist. See

http://hubpages.com/relationships/Divorce-Restrain...

To help undo some of the damage a restraining order has on your reputation, please see Ron Lasorsa's Restraining Order 911.

Yes, restraining orders do damage your reputation and can lead to problems obtaining work or even property rental.

I suggest you act aggressively and without delay! It sounds like legal counsel could help.


spencer  6 years ago

I am in Texas recently after 13 years in DC. I have plead for years that this is a fallacy in the system and no one has the balls to rule on something. I have a violation of a protective order of which I am alledged of sending the applicant an Easter card.. Previously I plead guilty to many violations as a plea deal and not a one of them was contact by me without the applicant's concet and in many cases she was the one coming around me. It was my college girlfriend and not one of the conditions required to get one of these existed. No "family" no violence, Nothing. THis is terribly WRONG


Laura in Denver profile image

Laura in Denver 6 years ago from Aurora Author

Spencer, you are absolutely right. I believe that we must enlist our legislators to change these much abused laws.

In the mean time, it will help you if there is any way to clean up your record. I don't think you can expunge charges you plead guilty on, but you can seal arrest records with no conviction. See a lawyer if you have money.

An excellent resource for you may be RADAR, Respecting Acuracy in Domestic Abuse Reporting at http://www.mediaradar.org/

I wish you luck.


G. Sexton 6 years ago

A protective order is just a vehicle for lawyers to control the divorce proceedings and extend it to a battle between the two parties. The out come will always be in the favor of the person that file it. Regardless if its true or not, It violates up to three of a persons constitutional rights. It take their children, property, money and freedoms. The person that gets the order doesn't have to tell the truth. The court suppressed your right in court. I think its not in place to save anyone, but its a law that makes money for lawyers. And give an unfair advantage.


Laura in Denver profile image

Laura in Denver 6 years ago from Aurora Author

The saddest thing about protective orders is that as soon as a party gets one against another party, law enforcement is involved and neither party has control after that.

It is true that lawyers encourage the use of ROs and POs to gain control of a divorce in an underhanded way (abuse). Dirty trickster lawyers specialize in this.


Steph- 6 years ago

I have a DVPO (domestic violence protective order) right now against my husband. I won't go into detail about what happened but to put it mildly he beat me up, choked me, very badly damaged my car, etc. I called 911 and met up with Sheriff and EMS and they could not have been more understanding. That tells me they see a lot of this.

I went and filed a DVPO the following Monday, it was granted 'Thank God!' My husband said he was guilty and agreed to the order when it went in front of a Judge for the year grant. 31 days later I was out with a group of friends and my husband came up behind me and grabbed my chair and started yelling at me. This is why I know it was 31 days because some of his words were 'I haven't talked to you in 31 days!' I covered my face and leaned over the table in a ball. My son called 911. He was arrested AGAIN. No telling what could and still can happen with this man. This was in June & July and I am still going to court for all of his actions! It is a very slow process that needs to be sped up!

With all this said, I understand that some people do violate and abuse the system, but no one knows what may have happened to someone else. As for me, if I DIDN'T have the protective order I don't know what may have happened and I still don't. I do fear for my life and I am very fortunate that I 'got away' that one night.

A protective order is of course only 'paper' and it itself can't protect you, but it could mean faster service from officials because of the history and it does prove that if something happens somewhere else that 'you're not crazy' or 'abusing the system' like some people are tempted to think. And it is good that officials have control during the DVPO. I (and anyone that files for one should) want it this way.

I am very thankful for the protective order and the laws that hold with it.

As far as property, I contacted a third party and had them come pick up his things...everything he came with...except with exception to furniture because he 'made' me get rid of all mine. (this should have been a clue for me as far as his coming controlling actions). I could have kept all his things, golf clubs, exercise equipment, boat, etc. but I didn't. I wanted to make sure he had NO EXCUSE to try to be around me or my home!


Laura in Denver profile image

Laura in Denver 6 years ago from Aurora Author

It sounds as though you are using the protective order as it was intended, which is to protect yourself. As other evidence of this, you returned his property. I wish you luck.

Sadly, many people use POs or ROs to gain advantage in divorce or for other unintended purposes, which is what this article is about.

Thanks for your comment!


Father 6 years ago

I am very comforted to see others are dealing with what I am dealing with. I am a 24 year old, music producer, with an Ex-Wife that got a restraining order on me when I have NEVER been arrested or in trouble for anything in my life with the law. I have a motion hearing for "Violating a Domestic Abuse Order" coming up soon and then a jury trial. Basically, I sent a text saying that I didn't know what kind of evil could be inside her to not give me my children on Christmas, and the DA PUSHED IT THROUGH AS A VIOLATION after she called the cops on me?! She comes into bars, and clubs in front of me and my wife and dances all in our faces in the most nasty of ways, points stares, laughs, ect, and its absolutely making a mockery of the judicial system! There seems to be no justice for men who go through these horrific situations! I graduated top of my class, a basketball scholarship, have been in the newspapers for multiple positive events and programs I have put together for at-risk youth in the community and she is single handedly taking it all from me! Its like the courts dont see that every problem that arises with us is due to her using the children as pawns! It's like they want me to be a dead beat dad that doesn't give a rip about seeing his children when he is supposed to! So rather than pay child support I fall behind because I have to pay a lawyer 5,000 dollars, while she sits back and laughs it up. If I were to list all the wrong I've been dealt from this situation, I would be on here all night! My prayers go out to those who go through the same. God bless you all!!!


Laura in Denver profile image

Laura in Denver 6 years ago from Aurora Author

It is outrageous that you must pay a lawyer to defend you, but I recommend a stout defense as this can determine your criminal record for LIFE.

You should be documenting daily how your wife uses the children as pawns and lining up witness testimony for any questionable behavior as well. Yes, YOU are on trial here and you need to defend your reputation.

Best of luck. -- Laura


Reda 5 years ago

American legal system and other structures are simply loosing all their impact in making things better.


Laura in Denver profile image

Laura in Denver 5 years ago from Aurora Author

I agree. We used to have many more rights than now. Anyone can claim anything and not that many people have Justin Bieber's kind of money to fight back.


4 years ago

My friend/girlfriend/girl i was seeing sought a RO against me because I pestered her, mostly via texts) over the course of one evening after she pursued another "interest". I acted immature and obsessive but at no time did I threaten any violence on her. Nor had I any violent acts in my entire life. She didn't like me pestering her. I did stop barring a goodbye message or two (I thought genuinely wishing her well) after she threatened such action. At court she had prepared, through obvious assistance of a lawyer friend, quite the damning looking package of texts, Facebook posts, etc. NOT ONE OF WHICH contained anything threatening. All it showed was I was an emotional, jilted lover.

I was fortunate to come to a personal agreement (negotiated through my lawyer) instead of actually going into a hearing with a judge. But the conditions are generally the same, no contact with her, her friends, etc. Stay away from her. Unfortunately we shared several friends through a shared interest. I am now persona non-grata with everyone and prevented from further participation in this interest. Clearly to me this isn't about her safety, it was vengeance. She wanted me out of her life which I would've gladly obliged. Now, I live with the aftermath instead of being able to move on.


Mike 4 years ago

Same happened to me. Coming back from military deployment, I was arrested for violating a restraining order that was not served.

To make long story short, three days later I walked out of jail, at night, in the middle of an October rain, with $0.18 in my pocket. This, after a 10-year marriage in which I was straight. I lost the children, the house, the car, just absolutely everything.

If this is not max injustice, I don't know what is. If the ex believes that there is a statute of limitations to such betrayal, there isn't. I will never forget and I will never forgive it, to her, and to the legal system that perpetrates it, day in day out.


Laura in Denver profile image

Laura in Denver 4 years ago from Aurora Author

Friend, I understand totally.

Many people who request ROs do not understand that this is a CRIMINAL and not a CIVIL charge.


Laura in Denver profile image

Laura in Denver 4 years ago from Aurora Author

It is indeed MAX INJUSTICE. Guilty before you can say a thing.

Where is that in the Constitution?


Laura in Denver profile image

Laura in Denver 4 years ago from Aurora Author

That could be that the dicisions are pushed to people who must gain votes or lose their jobs (judges). Thx!


heidijs 4 years ago from north bay area, CA

After 3 yrs of marriage-7 yrs living together and a 12 yr relationship-my by then my abusive husband had me served with RO papers and evicted from the home his Mom inherited from her Dad that is essentially his-but I'm wife #3 and his Mom wasn't taking any chances that he would lose it. We moved into it together. I worked diligently to make it a nice home for us-trying to mesh 4 people's style and belongings and make it all flow.There I was happier than I'd ever been. But then I met my soon to be rich ex best friend who only came over to be near my husband. She would give me advice-as well as advice to him that would always work towards her goal and many times she'd straight out lie about what i said or did. She even told me at the end i deserved to be hit again for screaming(crying)the first time he did it. When he did decide he didn't want to work anymore, our home became a scary place for me. There the verbal-then financial-and emotional abuse began-then the physical...choking me, slamming my head into the front door using my hair as a handle, body slamming me, threatening to kill me, my parents, locking my cat in shed in 100 degree weather for 3 days. Eventually abandoning me for wks at a time-taking my phone, there was no food, he took my purse, stole anything i had of value including amber from 1930s my Grandma left me from Lithuania and the comics that I collected since 1969-and my computer. He threatened to hurt me, my elderly parents...if I said anything although i know the neighbors heard because they called the police. His son is a k-9 officer in san jose and the police uncuffed him on a sargeant's orders despite his meth baggie, pipe being in his pocket, my face being swollen and the neighbor's complaint. I had nothing when evicted-i had gone for a walk after being alone for 3 wks except for lunch time visits from Vicky to make sure I ate part of her lunch and my husband's friend Vince- who would stop by with his new date in tow almost every night for 5 minutes or so. It was so lonely-I caught myself staring at the wall towards driveway 4-5-6 hrs at a time. It was surreal he had even turned off the power before lesving. I was never allowed back for supposively hitting him while he slept and catching my ring in hos nose-i'm not kidding. I had filed my own order 3 days before i was evicted-unaware that he's already done just that from what i think is a ridiculous story. I had by then 1-2 friends, he had oulled my car apart so it didn't run, i had no money-he would sell my things and then when i looked for them ,later he would tell me how stupid i was-how i couldn't get it together....i was so lost when the process server came-bruised, in tears, and confused. For a decade my husband had been my best friend...but the past 2.5 yrs....had he just been after the money i was once getting? i went back to the house to at least get some of the boxes i packed after filing my TRO. i watched my husband inside close front drapes, lock the front door and tear open my boxes stealing whatever he wanted-til he saw me. He said if i wanted to remain out of jail i'd do whatever he said beginning with cleanin g that kitchen-he kicked me in the back as i ran inside. He pushed me against counter with knife to my throat whispering the most violenly graphic senarios of what he would do me imaginable. when he stopped i walked out-he did call police. i was arrested a half mile away-husband and ex best friend in the car to i.d. me. He laughed as i tried to explain and beg the officer to check their records to find the list of 911 calls regarding our address...the countless times i was told by other officers to leave so they wouldn't have to attend my funeral. My husband then got a criminal protective order -he was 6'4" &230 lbs...I'm 5'7" and 160 lbs. The only physical contact that i had done during an argument was to try to get free or push him off me. in order to not be put on probation so i could leave the county to return to my parent's home-I REQUESTED the RO against myself-he never had to prove anything and now had ALL my evidence-photos of injuries, tapes of his screaming@me, journals written by me...and EVERYTHING I HAD EVER OWNED SINCE INFANCY in his possession. I left jail with 1 shoe and what i was wearing. my cat was retrieved 3 wks later-sick from malnutrition, he had worms and was traumatized. I've been diagnosed with depression and PTSD. My best friend moved in 2 wks later with her 2 kids. They smoked the home improvement business I started with my husband within 3 wks. I do not even have my clothes STILL-it's been 1.5 yrs and the Judge for divorce said the RO case was closed and she couldn't tell me what to do or order my things returned to me?????! (She's the 3rd Judge we've had so far...) The 2 million dollars was inherited and my ex best friend and husband are living it up-laughing selling my belongings or destroying them according to others. She wore my then unworn career type pumps my Mom had gotten for me to interview in-if my husband ever didn't get wind of it...there were video cameras, inrercoms, baby monitors hidden all through the house to see what i was doing (i guess)- to court I gave up my teaching job-and credential to work with my husband, obviously i can't use him as a reference which has made finding a job difficult-plus my neck, throat and left elbow hurt so much that at times i cannot straighten them. my parents lost about $800,000.00 in stock mrkt over last 10 yrs and are in their eighties. If they have to hire live in nurse for my Dad-I'm homeless. I don't think i can get support now due to violating RO that I feel should have never been issued? I haven't been to court-nothing scheduled since last July-he only filled out bio info on top of property declaration and listed NOTHING-is lying about his income-says he has no bank accts-he had 2 when i left. he has sent medical records with private info-(he has ALL my taxes, files, records, certificates, etc also)-to my aging Father -here at the house which contained upsetting information that I didn't wish for family to worry about....thus disturbing our peace here to say the least. How can this happen?! How can i reopen the RO case and make him prove his claim- and possibly get reimbursed for my property-my work in TMs (the home improvement business we started) or some support? My friend Vicky had taken 3 pics on her camera phone and has since mailed them to me here. My Mom-who my husband shoved when she finally got to our house-we live 2.5 hrs away. We haven't gone to trial but the court allowed him pretty much to destroy all my evidence-steal my possessions, and strip me of any dignity-as if I had any left. If anyone has any ideas about reopening RO case,support, getting completed disclosure, (I filed seperately-he hasn't filed since 2002) getting my belongings, files, etc...filing against him for physical issues-as well as the PTSD-pls let me know. I truly think he is a sociopath-the way he'd knock me around then shake hands with the next door neighbor 5 minutes later and compliment his new gate that was put in the day before...is there any way to force mtg with a psychiatrist? I mostly want my photos, my late Grandma's blouse that still smelled like her, my digital cameras-i took pics every day and i miss it and my photos from teaching 2nd/3rd grade for 9 yrs-i have no other pics from my career with my students, my antique children's books collection, my flute, my first books as a child-my Mom wrote little notes and signed them when she'd give them to me....

I know I was an idiot for not leaving-pls no need to tell me-(If you are being abused-it will not get better-file TRO request or call 911-don't wait-don't lie for them-you could lose everything including yourself)! i was just so hopeless, depressed scared and confused as to what was going on-walking and searching for him-thinking he was hurt at 3 am when he was at her house partying for days.what about the sargeant who released him? 4 yrs into our relationship-I found out my husband even had been arrested for meth, concealed weapons, DUI, stolen prop , soliciting a prosti


Laura in Denver profile image

Laura in Denver 4 years ago from Aurora Author

Dear heidijs,

I also was very unprepared for the RO my exp put on me.

Also, unaware of local help available for abused women.

Immediate help is available in most urban areas, generally by county.

There is a National Domestic Violence Hotline at 1-800-799-7233, which just answered my call. (Sadly, some such agencies funding has been cut recently, so I called it to verify. Message said to hold as they were assisting other callers.) They should be able to help you find local resources.

Most hospitals carry informative packets listing emergency shelters. Or again, call the county. Expect a wait.

I wish you the best of luck.

Ironically, I recently had to get a TRO from an abusive man. I did get the SOB to leave because I found a letter he left around (slob, this one) claiming homelessness for gov't benefits while he lived with me and told him I was going to report him for fraud.

Now he may truly be homeless! He is the most convincing con-man I have ever met!

I set out his belongings in bags by the house, which were picked up. There was not one room in the house uncluttered by his detritus!


Laura in Denver profile image

Laura in Denver 4 years ago from Aurora Author

A restraining order that is not served (and signed by the person who served it) is technically invalid.

There are times an RO or Temp RO cannot be served. I did have to file a TRO against a violent roommate. A hearing was set within two weeks so the respondent could speak in self defense.

I found out this sleaze had a lengthy record, which I will bring in. Also, I found some other evidence of fraud on his part. I want this TRO to become an RO and have evidence.

Your case sounds clearly different. The plaintiff has responsibility to make sure the TRO was served, I believe. States rule on these things.

If you are still in the military, I would try to access their lawyers.

There is nothing simple about ROs. It is a civil case to GET and RO, but a violated RO is a criminal case.

I would persue your case and demand to see the signature of the person who supposidly served you.

There have been a few cases where the wife was proven to have lied on a legal document and jailed. Daddy Justice, look for daddyjustice.com and Kids Come First Coalition.

There are statutes of limitations, so DO NOT WAIT. Plus your children deserve to see you.


stopbogusoop 4 years ago

http://www.change.org/petitions/u-s-house-of-repre...

Please sign my petition on Change.org

It addresses this very issue in a letter to my Congresswoman asking legislation to protect innocents against bogus orders of protection


Laura in Denver profile image

Laura in Denver 4 years ago from Aurora Author

Oh, sorry about wrong comment my other article.

I have signed and agree. Tired from a long day working.

I wish you well in your legal fight. Mine has lasted many years.


will 2 years ago

Chick borrowed 3000. Got a r.o so she wouldn't have to pay it back. End of storyl

L


eyore 2 years ago

Very interesting abuse of the law.

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