A Wronged Father’s Immodest Proposal for Restraining Order Reform

Posted on June 23, 2015


The author of this guest commentary is a Virginia man whose wife obtained “three temporary restraining orders against [him], and finally got a permanent restraining order imposed against [him] in Colorado in January 2015, based on a claim of domestic abuse, stalking, sexual assault, and physical assault,” a claim made seven months after she had moved out and that the man denies. (She had previously made identical claims against a different partner.) Between February and June 2015, his wife gave birth to a child she had told him she had miscarried, was institutionalized for suicidal depression and alleged auditory hallucinations (voices urging her “to hurt or kill the Child”), and took her own life. Though man and wife (whose domestic relationship had “lasted 75 days total”) had divorced in April 2015, the man only learned he had a daughter after his ex-wife’s death. His daughter is in the custody of her maternal grandparents, and he has been charged with failing “to provide a safe and stable environment for the Child [whom he hadn’t known existed] and [placing] the Child’s welfare at risk.” This man’s story is briefly sketched here, and will be chronicled in detail in a future post or posts.

It would be best to abolish restraining orders all together. But if we’re going to keep them, here are a few ideas for procedural reforms:

  1. Raise the standard for imposing a permanent restraining order from preponderance of the evidence to clear and convincing evidence or, better yet, proof beyond a reasonable doubt. Since important rights are taken away by restraining orders, including the constitutional right to possess a gun, the defendant should get the same kind of due process s/he would get in a criminal trial.
  2. At the hearing, apply the same rules of evidence that are used in trials. For example, hearsay should be inadmissible, since it’s not as reliable as the testimony of a person who can be cross-examined.
  3. Give defendants the right to have their cases heard by a jury. Jurors wouldn’t be subject to the same political pressures that influence judges, that make them want to err on the side of granting restraining orders.
  4. Give indigent defendants the right to a court-appointed lawyer. Otherwise, they don’t really stand much of a chance of winning. At the very least, out-of-state defendants should have an opportunity to attend court hearings by teleconference, rather than having to travel thousands of miles for a hearing that could be continued at the last minute anyway.
  5. Allow out-of-state defendants to participate in the hearing by videoconference. This will reduce the cost of participating.
  6. Require that temporary restraining order petitions be approved by a prosecutor before they go to the judge. A prosecutor is part of the executive branch, and therefore can be more easily held accountable to the public than a judicial officer or his staff. This also gives prosecutors more of an incentive to prosecute a lying plaintiff, because a fraud perpetrated on the court is also a fraud perpetrated on them.
  7. Eliminate the court’s power to kick defendants out of their homes pending the hearing. A plaintiff who feels unsafe living with the defendant should instead go to a shelter for a week or two.
  8. Make all restraining orders expire after a period of time, e.g., two years. Some states already do this.
  9. Give defendants an ex parte process for overturning temporary restraining orders, if they have evidence that shows that a restraining order isn’t needed. This way, it wouldn’t be necessary to wait till the hearing before getting justice.
  10. Get rid of the federal requirement that each state recognize the restraining orders of all other states. Allow states to, if they wish, recognize only the restraining orders of states that they deem to have appropriate procedural safeguards against abuse.

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*More on constitutional due process rights denied restraining order defendants is here.