Orders of Protection issued against a spouse can help protect a person from threats of physical violence, harassment and other actions that are defined as "family offenses". Generally, there are two types of Orders of Protection: a "refrain from" specific types of conduct or a "stay away from" the person, home, school and place of employment at all times.
When properly requested, an Order of Protection serves a valuable purpose which is to keep a person safe and free of threats or acts of violence. When improperly requested and received, an Order of Protection is misused to gain a tactical advantage in a divorce case usually involving custody of the children or to obtain exclusive occupancy of the home. Allegations of domestic violence are taken seriously by both attorneys and judges.
Usually an Order of Protection issued in the Family Court is initially granted "ex parte" which means solely based upon what one person has claimed. The person seeking protection has gone to court without the other person being present and has made written allegations of a family offense. If the judge believes that protection is needed, a Temporary Order of Protection is granted without a final determination as to whether or not the act(s) are true or false. The intention is to keep the person safe until the other person can come to court and answer the claims.
If the Temporary Order of Protection is a "stay away", visitation with the children is limited to any existing or future order of visitation. If an Order of Protection is obtained either prior to or at the start of a divorce action there usually is no existing visitation order. Therefore, the temporary order may keep a parent away from their children until a visitation order is obtained or a modification of the Order of Protection is issued. A parent who makes a false or baseless allegation may initially obtain the upper hand in the litigation. Even if the Order of Protection is eventually denied or withdrawn, damage has been done.
If you need an Order of Protection or feel you have been improperly accused of a family offense it is important that you get legal advice from a matrimonial attorney to protect your rights. Please call my office for further assistance because every person's case is different.