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Re: Restraining Orders

If you are the victim of domestic violence, or are reasonably in imminent fear that abuse or violence will be inflicted upon you or your children by a spouse, ex-spouse, partner, or anyone with whom you have a “significant romantic relationship” then please I beg you as you read this pursue any and all legal avenues available to you to protect yourself and your family before it is too late, including restraining orders.

You are a victim or may tragically become a victim.

The warning tone of this entry is not intended for you.  We all wish you the very best and would do anything in our power to help.

This is for those people who are anticipating filing a divorce (or custody) action and, spurred primarily by a legitimate concern that when the case is soon filed they will be at a disadvantage due to some skeleton in their closet so they take a calculated, strategic step of winning the race to the courthouse and filing a restraining order.

A restraining order is not a tactic and there is a special place in hell for anyone who uses it as a sword instead of a shield.

In R.I., the issuance of a restraining order when children are involved gives the filing party temporary sole custody of the minor child/children.

The party who filed the restraining order has a significant head start that the other, unaware party may well spend several months and thousands of dollars in legal fees try to course-correct and make up the slack.  Even with a good attorney they may never again be on equal footing.

It seems to me that this kind of misuse and abuse of the domestic violence system was not as prevalent even a handful of years ago.  Somehow the benefit of this underhanded approach has made its way out into the mainstream and I fear that without significant procedural reform it will only worsen.

I have written before how the Family Court is an all-too-human system.  Judges used to be lawyers and lawyers used to be human beings.  No judge wants to refuse a person seeking protection from abuse (or, “abuse”).  Say you are the judge, and Mrs. Doubtfire comes to you seeking a restraining order from her spouse for domestic violence.  Spouse is not present, nor can he be (imagine the implications for the victims if the abuser had to be present for this).  The judge can either grant restraining orders temporarily – in R.I. a hearing must be set within twenty days if a restraining order is granted – have spouse vacate the marital home, give Mrs. Doubtfire temporary custody and know that at the very worst you have committed the lesser of two evils.  Worst case scenario, spouse is inconvenienced for three weeks, the kids miss him, and hopefully things calm down.  Then maybe, just maybe, the family can remain a family.  But what if you deny the restraining orders before you?  What if the affidavit asking for protection is a little thin because the only reference to actionable abuse is in the past and the inciting event was innocent enough (it is not uncommon for a victim to come forward seeking relief in 2020 for a physical altercation occurring in 2017, as he or she fears her spouse may become physical again given new stresses and flash points in the relationship).  If Judge denies requests for restraining orders because the affidavit is a bit thin and heaven forbid something happens to the applicant or the child / children then, understandably, Judge would never live with herself.  This is perfectly understandable.  This is perfectly human and humane.  But within this tendency to grant restraining orders is also fertile ground for misuse.

Judges know better than most that in any argument between spouses, partners, or former lovers there are at least five sides to every story.  At the original restraining order hearing, your judge is only getting one of those sides.  And, all-to-often, the judge is the only relief a terrified victim can seek as these kinds of “he said – she said” strictly domestic arguments are underwhelming to the police absent a witness (rare) or a visible injury (which often has to be captured immediately after the abuse which is when the actual victim is still under the abuser’s control).

If you are on the other side of this coin and have had a restraining order granted against you, please seek out quality legal counsel as soon as you can afford to do so.  You are probably facing a contested hearing in a very short amount of time (and that accelerated timeline is there to help you, remember, in case the application is without merit!).

This is a delicate, difficult procedure which needs considerable legislative reform.  Until then, whether you are filing or being filed against be aware that context is king.  Do not ever pursue a restraining order as a means to another end.  You may win the battle but lose the war.

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