I’ve combed the Internet in recent weeks for motion-to-dismiss forms applicable to restraining orders issued in the 50 states. For Arkansas, there’s nothing to be found. Zip. If that weren’t suggestive enough that the process is a lock, consider the above entry excerpted from a 2011 Arkansas Court Bulletin.

This means an accuser may be awarded exclusive entitlement to the family residence; sole custody of children; a monthly stipend from the former breadwinner, who may find himself out of a job subsequent to being issued a “domestic abuse” restraining order; and reimbursement of costs. Filing for a protection order, in other words, may gain a plaintiff everything and cost her (or sometimes him) nothing—whether the allegations it’s based on are true, hyped, or lies.
The case commentary (which you’ll observe publicly discloses the names of the parties to the action) concerns a man who was served with a notice to appear in court to answer allegations of “domestic abuse” six days thence.
Rough translation: “Dear sir, you’re expected in a courtroom next week to respond to allegations that you beat your wife.”
For people who know nothing about restraining order processes, appreciate that this man was given less than a week’s time to prepare a defense against obviously serious charges with obviously serious repercussions. In six days, he was supposed to come to grips with public allegations that may have horrified him, procure an attorney’s services, gather relevant evidence and testimony, etc.
Six days.
The bulletin reports that the man “sought a continuance [postponement], which was denied.” He didn’t attend the hearing. The commentary doesn’t indicate a reason. His request to have the order set aside, because the expectation of an immediate response didn’t conform to the Arkansas Rules of Civil Procedure, was also denied. Why? Because the Arkansas Domestic Abuse Act trumps the rules of civil procedure.
This case exemplifies why restraining order adjudications strike so many people as Kafkaesque: “I move—.” “No.” “Then—.” “No.” “But—.” “The rules don’t apply in your case, sir, and we don’t negotiate our decisions.”
Defendants’ being railroaded, of course, is nothing extraordinary. “Emergency” restraining orders may allow respondents only a weekend to prepare before having to appear in court to answer allegations—very possibly false allegations—that have the potential to permanently alter the course of their lives.
Extraordinary is the Arkansas courts’ openly and nonchalantly recognizing in a bulletin that their protective order process is “not governed by the rules.”
Its proceedings are “special.”
Copyright © 2014 RestrainingOrderAbuse.com
David
May 31, 2014
Wow…5 days…they are positively generous in Arkansas! In the state where a restraining order was obtained against me, only 2 days notice of a hearing is required. I was actually granted a continuance, though, because I didn’t even get 2 full days advance notice–but it didn’t seem to help.
More than anything else, these extremely short time frames seem to make a mockery of due process. I’ve occasionally found myself involved in other relatively minor legal skirmishes and a reasonable amount of time to prepare for court is normally allowed. Justice delayed is justice denied but “justice” that is too rushed isn’t right either. Even eviction proceedings due to non-payment of rent–which are quite accelerated because the landlord is losing money–usually require more time than that for the tenant to prepare a defense. The law considers it better to allow the tenant to remain a deadbeat for a short while than to deny them all their rights.
Of course it is more the respondent who is subject to these short time frames, not the petitioner. Exact procedures probably vary a bit from state to state and from county to county, but I get the sense that the petitioner has a lot of control over when the papers are served. My petitioner clearly waited until the last minute to have me served. Of course, that sort of puts the lie to any claim that she was in real danger–if the temporary restraining order were really necessary to protect her she would not have delayed.
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Moderator
June 1, 2014
That alternative scenario, eviction of deadbeat tenants, is even more ironic when you consider that a man like the one in the case highlighted in this post would have been removed from his home upon service. Not in six days or even two. Instantly.
Basically you nominate someone a menace (beater, stalker, whatever) and then you treat him or her however you want. This “nomination” is literally a process of a few minutes. Nothing has to be documented or proved, and no serious deliberation is expected from judges, let alone required.
Petitioners can plot their actions, sure. The pretense is that only people (women) in desperate circumstances apply for restraining orders, despite grave misgivings, and that there’s no element of premeditation or cunning. It’s amusing to observe officers of the court, who are among the most cynical people on the planet, “earnestly” act as if this is always the case. It’s more certainly seldom the case proportionate to the number of restraining orders sought each year, which is in the millions.
(What you’ve described, incidentally, is commonplace in law. I spent most of last year in a lawsuit and repeatedly observed that the opposing attorney scheduled the submission of his briefs to minimize response time. It’s a mind-f* game whose object is suppressing truth not revealing it. It’s monstrous, and it’s a wonder that it doesn’t inspire more violence than it does.)
It’s true that the five days is nothing exceptional. What’s striking about the time frame and its being admitted in a court bulletin that protective orders are exempted from governance by the rules of civil procedure is that these processes have become so institutionalized that their manifest crookedness is literally invisible to those who report on them.
The bulletin even casually remarks that the inapplicability of the rules of civil procedure to the protective order process is an “important point.” The significance of that point is clearly lost on the reporter.
There are no checks or balances. The process is coerced from the top with money and influence, coerced in the middle by social expectations, and may be coerced from the bottom by misrepresentations or outright lies. Statutory prescriptions, which already abrogate due process, are furthermore exempt from the rules.
There’s nothing about the process that doesn’t stink to high heaven, but it has become so established and does such a good job at quashing dissent with an iron fist (terrorism), that facts like those in the published case and remarks about them escape contemplative scrutiny altogether. Ho hum.
Meanwhile parents are denied access to their kids, highly trained workers are denied employability in their fields, and some of the machine’s casualties are eating out of dumpsters.
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