DV Restraining Order Handed Out Like Halloween Candy

March 17, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Recently, I’ve done a number of posts on the “protective parent” movement. The entire basis of that movement is the notion that judges routinely give custody of children to fathers who are abusive, either toward the mother, the child or both. As I’ve said, there is essentially nothing to back up that claim and the “journalism” that purports to do so is so bad, so ethically challenged, so completely uninterested in the reality of child custody as to be null and void. Indeed, those articles are so deficient in every way that they accomplish the opposite of what they intend.

What I haven’t mentioned is what they never mention – the ease with which domestic violence restraining orders are handed out by both family and criminal courts. So it’s timely that the Nebraska case of Lindsey S. v. Andre Robinson comes before us. It’s been a while since I last wrote on such a case, but they’re quite common. Lindsey S. v. Robinson proves once again that judges scrutinize applications for DV restraining orders with something like the rigor a parent scrutinizes trick-or-treaters on Halloween. Essentially, they dole the things out like candy.

Lindsey and Andre had a relationship and a child, A.R. Then, for reasons unknown, Andre went to prison. For life. Now, the two never married and there was no formal proof that A.R. is Andre’s child, but he believes she is and announced his intention of filing a paternity action and pursuing what parental rights he could while behind bars. Meanwhile, he used the prison telephone to call Lindsey and, on occasion, to talk with his daughter.

That didn’t sit well with Lindsey, who went to court to get a restraining order against Andre having further contact with her or A.R. based on an act or threat of physical violence. Here’s the applicable part of the Nebraska statute governing such orders.

[T]he occurrence of one or more of the following acts between household members: (a) Attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument; (b) Placing, by means of credible threat, another person in fear of bodily injury. . . . ; or (c) Engaging in sexual contact or sexual penetration without consent as defined in section 28-318.

Being in prison, it’s perfectly clear that Andre was unable to commit any of those acts with the possible exception of issuing a “credible threat.” So, what is a “credible threat” under Nebraska law? It is,

a verbal or written threat, including a threat performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct that is made by a person with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family.

Recall dear reader that Mr. Robinson was in prison and he wasn’t getting out any time soon or possibly ever. Accordingly, absent supernatural powers, there was simply no way in which Andre could have threatened Lindsey or A.R. “with the apparent ability to carry out the threat.” And of course, the judge knew where Andre was and that his sentence was for life.

But he issued the restraining order anyway. The fact that there was literally no legal basis for doing so deterred him not in the least. That’s a clear case of judicial malpractice.

But, bad as that is, it’s actually considerably worse. Not only was there no law on which to base the issuance of the order, there weren’t facts either. As the Court of Appeals was careful to note, the hearing on the issuance of the order found Lindsey in court with her attorney and Andre appearing by telephone from the prison. Neither was ever placed under oath, no documents were accepted into evidence and no other witnesses were called. In short, although the judge asked both Lindsey and Andre some questions that were duly answered, the total evidence adduced at the hearing was zero. So, as a practical matter, even if Andre hadn’t been in prison and had committed the worst possible domestic violence against Lindsey or their daughter, there was no factual basis on which to issue a restraining order.

Plus, had the two had been placed under oath, a fair reading of what Andre was charged with would be that he telephoned Lindsey from prison seeking to have an ongoing relationship with her and with A.R., his daughter. That of course is behavior that is protected by the Constitution and in no way threatening to anyone.

Citing the above information, the Court of Appeals overturned the restraining order that should never have been issued in the first place.

The point being that allegations of domestic violence, contrary to the claims of the “protective parent” movement, are taken very seriously by courts, so seriously that they often ignore both the facts of the case, the applicable law and the United States Constitution in order to issue restraining orders based on them.

It’s yet another thing the likes of Laurie Udesky might have considered before she wrote her bit of agitprop about which I’ve written before. But she was too in thrall to the blandishments of the “protective parent” movement and so unwilling to seek information elsewhere that the ease with which restraining orders are often issued, like so much else, never appeared in her article.

 

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#domesticviolence, #restrainingorders, #Nebraska