Spouse using protective order to keep me from my kids?Recently on our divorce forum a user asked, "My wife has filed a protective order against me. I have never done anything violent or threatened her. I did, however, threaten to file for divorce. Could she have filed the order to keep me from getting custody of the children?"
Who can file a protective order?
A wife is well within their rights to file a protective order against their husband if they have been the victim of physical abuse or they believe there is a threat of imminent danger.
Others who can file protective orders include ex-spouses, other blood relations, relations by marriages, live-in girlfriends or boyfriends, victims of sexual assault, individuals involved in a dating relationship, or biological parents of the same child.
What will the protective order do?
If your wife is successful in obtaining a protective order against you the requirements could vary by state but generally include restrictions such as the requirement that the abuser stay at least 500 feet away from the alleged victim and where the alleged victim lives and works, and to refrain from harassing, threatening, stalking or committing any violence against them. The alleged abuse may also may be required to stay away from their children as well as attend some type of counseling.
What do you do after the protective order has been requested?
If your wife told you she has filed an order against you it will be most likely be served to you within one to two weeks. You will also be notified of the court date to contest the order.
Don't wait for the order to be served. Now is the time to talk to a lawyer and find out what information your wife included on the affidavit. Not attending the hearing is also not an option. If you do not attend the hearing and come prepared to defend yourself the court will issue the protective order against you.
How can I fight a protective order?
Domestic assault and violence against another person is a serious offense. With that said, there are instances where allegations are made or grossly exaggerated to get a protective order issued.
Unfortunately, divorce lawyers and their clients may also use a protective order to gain a strategic advantage over the other spouse in divorce. It not only can force a man to prematurely leave the marital residence, it can also eliminate the presumption of joint physical custody of the children, allowing the alleged victim to get sole custody. Not to mention help the wife with issues of property distribution or spousal support.
Unfortunately, protective orders are sometimes used in custody battles as ammunition for one of the spouses to get the upper hand in the divorce proceedings. In fact, a few years ago the Illinois Bar Journal called orders of protection "part of the gamesmanship of divorce."
Take this move by your wife very seriously. You need help and you need it now from a legal professional who understands the laws of your state. Getting the right help may be expensive, but it is critical if you want to protect your rights and your relationship with your children.