By Teresa A. Drexler
Attorney & Partner
The Gasper Law Group
Here is the scenario: James comes home from work to his wife Jane and three children under the age of five. Jane is stressed out and James is tired from work. The children are already asleep for the night, tucked in bed sound asleep. Soon an argument ensues and quickly escalates with the parties becoming verbally abusive with each other. Jane threatens to hit James and James leaves the home. The next day Jane decides to file for divorce and considers filing a Civil Restraining Order against James due to the verbal abuse she endured the night before. Jane talks to her friend who informs Jane that if she files a Civil Restraining Order against James and files for divorce at the same time Jane can obtain an advantage in her divorce case against James. Jane decides to file for divorce and file for a Civil Restraining Order. Jane includes the three minor children as protected parties thereby unnecessarily restricting James’ parenting time. Jane knows there is really no fear of James hurting her but decides to file the Restraining Order based on her friend’s advice that Jane will gain an advantage in the divorce case if she does. Unfortunately, this scenario actually occurs in real life more often than you would think.
Civil Restraining Orders create protection for parties that are being abused or harassed by another person, typically a spouse. Divorce clients are often faced with a situation where there is a need to file a Civil Restraining Order against a spouse. When there is abuse, either emotional or physical, or threats of abuse, a Temporary Restraining Order may be necessary. However, the decision to file a Restraining Order should not be taken lightly. Often people are quick to file for a Restraining Order only in hopes of gaining leverage in a divorce case. This is a poor reason to file for a Restraining Order and courts are quick to see when a Restraining Order is filed for this purpose. Restraining Orders should be reserved for cases where there are serious allegations of emotional or physical abuse. If there are minor children a parent should carefully consider adding the children as protected parties as adding the children to the Restraining Order will result in restricting the other parties’ parenting time.
What clients must realize is that the courts favor both parents being involved in the minor children’s lives. When one party unnecessarily restricts the other parents’ access to the children by filing a Restraining Order, the children are the ones who suffer. If the courts determine that a parent filed a Restraining Order simply to gain an advantage and that the children were unnecessarily restricted from seeing the other parent, the court could order make up parenting time for the parent who missed their time or a number of other consequences.
The other consideration you should make before filing a Restraining Order is whether or not the Restraining Order will create a negative financial impact on the parties involved. Often a Restraining Order that goes permanent will result in the loss of employment for the party the Restraining Order is against. If you are a spouse looking to see child support or spousal maintenance from the other party you will lose that future financial support if your spouse loses their job due to a Restraining Order. In the famous words of Alex from the DreamWorks movie “Madagascar” – “You bit the hand, Marty! You bit the hand!”