Restraining Order

Rhode Island Family Court constables and sheriffs, unfortunately, devote too many resources to unwarranted and unjustified temporary protection from abuse complaints. The police also devote too many resources enforcing unjust temporary protection from abuse orders.  These unjustified restraining orders clog the system and actually hurt legitimate victims. Restraining order article authored by a Rhode Island restraining order attorney.

Easy to get a Restraining order

The ease of obtaining  a temporary RI complaint protection for abuse counter-intuitively hurts real victims of domestic abuse. (I want to emphasize that I take domestic violence very seriously and am exploring these issues with the intent of helping actual victims get the help, protection and services that they need and deserve. In most cases a restraining order is filed legitimately as a result of domestic assault, domestic vandalism, assault with a weapon or threats.)

Temporary Restraining orders are usually ex-parte

If a man or woman goes to Providence Family Court or the applicable county and seeks a restraining order, they will file an affidavit and other documents setting forth the basis of the claim for protective order. This will usually be an be an ex parte* proceeding.

If a temporary order protection from abuse enters, the order will be in effect until the hearing date which must be within 21 days. At the hearing date, both sides can testify and present evidence and the RI Family Court will make a decision of whether to keep the restraining order in effect for up to three years. When the abuse case requests a restraining order against the defendants child, the court can  only order a one year RO.

RI complaint protection from abuse law | restraining order

Pursuant to  the penalty section of the protective order, RI Statute Section § the Court can order the following relief among other orders:

” (1) Ordering that the defendant be restrained and enjoined from contacting, assaulting, molesting, or interfering with the plaintiff at home, on the street, or elsewhere, whether the defendant is an adult or a minor;(2) Ordering the defendant to vacate the household immediately; (3) Awarding the plaintiff custody of the minor children of the parties, if any; ”

Attempts to obtain unfair advantage in divorce or custody case

Many people file abuse complaints seeking to get their spouse out of the house to give them an advantage in a custody or Rhode Island divorce matter. More significantly, the ex parte award of custody of a child is very alluring. This sometimes causes a litigant to fabricate or exaggerate allegations. In some cases, litigants lie in order to get an unfair advantage in a RI child custody or visitation feud.

In some instances, people are representing themselves pro-se and cannot afford a RI child Custody attorney. Some of these people use the abuse calendar to resolve visitation  and custodial issues. People do this because a complaint protection for abuse is much easier to reslove without a lawyer then litigating a child custody cause of action.

Exaggerated and false claims of abuse

Many people file exaggerated, fraudulent or unwarranted restraining orders to obtain an unfair advantage.  Many of the litigants who file such restraining orders, dismiss the restraining order on the hearing date or do not appear for the Court hearing.

Usually no penalty for false and misleading restraining orders

There is usually no penalty for someone who wrongfully throws their spouse or ex-boyfriend out of the house. There are no implications in most circumstances to the person who deceived the court even when someone is wrongfully arrested.

Sanctions?

The Court should be able to award sanctions or attorney fees if a person who sought the RO does not appear for the court date. The Providence Family Court Justice should be allowed to make a finding that the Plaintiff acted in bad faith. The magistrate should be authorized to make findings that the  abuse cause of action was frivolous or merit-less.

If the defendant was served AND the defendant suffered actual harm, such as being removed from his house or arrested, then sanctions should be on the table. Sanctions would be even more justified if the minor child was wrongfully taken from the defendant’s possession.

Perhaps, such an award of sanctions or attorneys fees will dissuade litigants from filing unwarranted restraining orders. If fewer restraining orders are filed, it will allow  judges and others involved in the process to devote more resources to legitimate cases of domestic violence or domestic assault.

Denying some restraining orders will deter fraudulent RO

If a decent percentage of temporary restraining orders are denied and sanctions are granted in fraudulent cases, it wont be long until word gets out on the street. The message would be sent that the game is over and only real victims need appear! Every moment that is spent by constables or sheriffs trying to track down a falsely accused person is a moment not spent serving a real abuser or violent offender in a real domestic violence case.

Using an RO to get leverage in a custody cause of action

Too many people abuse the Rhode Island Family Court system by filing a complaint for abuse in order to get LEVERAGE AND AN UNFAIR ADVANTAGE IN A CHILD CUSTODY OR DIVORCE CASE. As far as the person who is accused of domestic violence, complaints protection for abuse are  serious matters. If a person is accused of violating this this type of restraining order they will probably be imprisoned  for at least a night and face criminal charges of violating the restraining order.

If the person is on probation, released on bail or under a one year criminal  filing  the reality is rather grim. These people face a potential of 10 days in jail without a hearing if they are accused of violating a temporary complaint protection for abuse. This is the case even if the restraining order was based on lies and misrepresentations and is eventually dismissed.

Do not fault judges for granting a flimsy RO | an unfair quagmire

I will not fault  a Judge for granting a restraining orders based on flimsy allegations that barely meet the statutory standards. Judges and Magistrates are placed in an unfair quagmire. If a judge denies a ex part temporary restraining order and the victim is killed or seriously injured it will be on the front page of the Providence Journal. The untimely death of the victim may be splashed across the national news. NO judge wants to open up the Providence Journal and read  ‘JUDGE FAILS YOUNG MOTHER WHO SOUGHT PROTECTION- MOM VICIOUSLY STABBED TO DEATH’

Not only that, the judge or magistrate would have to live with that guilt for the rest of their life. Most judges err on  the side of caution and grant nearly all requests for restraining orders unless it is apparent on the face of the affidavit it does not meet the statutory standard.

Judges should follow statutory directives

I think the answer to this quagmire is granting all restraining orders that meet the statutory requirements of placing the victim’ in fear of imminent physical harm’,  actually harming or

cyber-stalking.  If a affidavit does not meet the statutory standard then judges should deny more of these restraining orders.

Thankfully, in the last several years there has been an increasing trend to deny complaint protection from abuse complaints that do not meet the statutory standard.  There are also numerous judges who grant a temporary restraining order even if the allegations barely satisfy the statutory requirements. These judges will dismiss the abuse complaint when the Plaintiff cannot meet his or her burden of proof at the hearing on the merits.

This is certainly not a simple issue to resolve!

Article by Rhode Island divorce attorney and East Providence Restraining Order lawyer- David Slepkow 401-437-1100

*”Latin, On one side only. Done by, for, or on the application of one party alone. An ex-parte judicial proceeding is conducted for the benefit of only one party”  Dictionary

It depends.  A no contact order results from a Rhode Island Criminal Case. A RI No Contact order is a very powerful restraining order. If a person violates a No Contact Order, it is a criminal offense and may be a violation of the terms of probation or bail.

Rhode Island no contact order results from an arrest

However, a Rhode Island no Contact order ends if the Defendant is found not guilty or if the charges are dismissed. A Rhode Island no contact order also ends when the one-year filing, probation, suspended sentence or deferred sentence is over.

Complaint protection from abuse

If you feel that you need the protection of a Rhode Island Restraining order after the No Contact order will end, then you may file a RI family Court Complaint Protection from Abuse. A Family Court Order Protection from abuse usually enters for 1-3 years and will continue even if the criminal charges are dismissed.

Keep in Mind, you can only file in Rhode Island Family Court if you have a child with the person who you seek a restraining order from or if you are related by blood or marriage.  These Complaint Protection from Abuse cases are civil matters. However, a violation of a Order Protection from Abuse from RI family Court is a criminal offense.

If it is a girlfriend, boyfriend situation with no minor child then the Restraining Order must be filed in Rhode Island District Court.

If a restraining order is needed against someone who you were not in an intimate relationship with then the restraining order needs to be filed in Rhode Island Superior Court. Violations of RI Superior Court Restraining Orders are not criminal offenses but are punishable by contempt. If you have valid grounds for a Restraining order and you need  Child Support or visitation orders then you should file a Complaint Protection from Abuse  in  Family Court in addition to the No Contact order.

A Complaint Protection from Abuse in Rhode Island Family Court is intended to be utilized by abuse victims legitimately seeking a restraining order.

Domestic abuse

The abuse calendar is intended for use by someone who has been physically abused by their spouse, the parent of their child or another family member.

It also is intended to be used to protect against perpetrators who put victims in fear of imminent physical harm. An abuse case could also be filed by victims of harassing, stalking or cyber-stalking.

The RI Family Court abuse calendar is not intended for people who are misrepresenting facts or blowing incidents out of proportion.

Unfortunately, many people are using the Domestic abuse calendar for purposes it was not intended for

Many people are wrongfully using a restraining order to get leverage in a custody, divorce, visitation or child support feud. When an abuse complaint is granted, the party who filed the restraining order typically obtains temporary custody of the child.  Sadly, when people file unsubstantiated complaints for abuse, it hurts the credibility of those who were in fact real victims of domestic violence and assault.

People often dismiss their complaint for abuse when it is time for a testimonial hearing to prove the grounds for the restraining order. Many of these instances involve cases in which the temporary restraining order was not legitimate in the first instance.

Why are people filing Complaints for Abuse rather than Miscellaneous petitions for custody?

Many people are filing pro-se, representing themselves. Many of these people file on the domestic abuse calendar because it is easier. A domestic violence advocate is provided to help these people fill out the forms. Also, when the restraining order case is filed, the other side is not present, initially, to tell his side of the story. These restraining orders are almost always granted.

The initial abuse restraining order expires 20 days after the first hearing, unless extended by the judge. At that hearing, the other party will get a hearing and chance to tell their side of the story

A miscellaneous petition for custody or to establish visitation rights is much more complicated to file than an abuse restraining order. Restraining orders are serious business and should only be filed by legitimate victims! The alleged abuser could be arrested and spend time in jail as a result of a violation of an order protection from abuse.

A Rhode Island divorce attorney with 22 years of experience representing clients in Providence Family Court authors this post about the “automatic orders in divorce cases.” Below you will find a copy of Rhode Island General law 15-5-14.1. This statute is entitled, “Automatic Orders in Divorce Cases.” This Rhode Island divorce statute codifies  some of the rules of engagement, so to speak, in a divorce in RI.

The ‘spirit’ of the automatic court order

It is  usually not a good idea to do anything in anticipation of divorce that violates the automatic court order. Deleterious and deliberate conduct such as removing a spouse from health insurance prior to the Plaintiff signing the complaint for divorce will usually backfire in Rhode Island Family court.

Also actions that do not technically violate the automatic restraining order but violate the spirit of the orders could be met with harsh consequences.

When do the automatic divorce court orders go into effect?

• This automatic court order goes into effect upon the Plaintiff signing the divorce complaint.
• It applies to the Defendant when the Defendant is served with a Rhode Island Divorce.

What are the consequences of violating the automatic court orders in Rhode Island Family Court?

• Attorneys fees and costs awarded to your spouse for his or her RI divorce lawyer’s representation.
• A finding of willful or technical contempt.
•  Monetary sanctions
• An award of damages in favor of your spouse such as paying your spouse’s medical bills for cancelling health insurance
• Possibly, incarceration at the ACI from day to day until you purge yourself of the contempt.
• Other sanctions in equity.

§ 15-5-14.1  Automatic orders in divorce cases. – (a) Upon the filing of a complaint for divorce, divorce from bed and board, legal separation, annulment, custody or visitation by the plaintiff and upon service of the petition and summons of the defendant or upon waiver and acceptance of service by the parties, the automatic orders shall be effective with regard to the plaintiff upon the signing of the complaint and with regard to the defendant upon service. A copy of the automatic order shall be served with the summons and complaint.

(b) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or without an order of the court, any property, individually or jointly held by the parties, except in the usual course of business or for customary and usual household expenses or for reasonable attorneys’ fees in connection with this action. Nothing in this section shall be construed to create liability against or affect the validity of the title to real estate of any purchaser of real estate for value when the purchaser acts in good faith and without actual knowledge of the court’s order.

(c) Neither party shall incur any unreasonable debts including, but not limited to, further borrowing against any credit line secured by the family residence, further encumbrance of any assets, or unreasonably using credit cards or cash advances against credit or bank cards. Nothing in this section shall be construed to create liability against the creditor under the terms of the original agreement when the creditor acts in good faith and without actual knowledge of the court’s order.

(d) Neither party shall permanently remove the minor child or children from the state of Rhode Island without the written consent of the other party or an order of the court.

(e) Neither party shall cause the other party or the children of the marriage to be removed from any medical, hospital and/or dental insurance coverage, and each party shall maintain the existing medical, hospital, and dental insurance coverage in full force and effect.

(f) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowner’s or renter’s insurance policies in full force and effect.

(g) If the parties are living together on the date of service of these orders, neither party may deny the other party use of the current primary residence of the parties, whether it be owned or rented property, without court order. This provision shall not apply if there is a prior, contradictory court order.

(h) If the parties share a child or children, a party vacating the family residence shall notify the other party or the other party’s attorney, in writing, within forty-eight (48) hours of such move, of an address where the relocated party can receive communication. This provision shall not apply if there is a prior, contradictory court order.

(i) If the parents of the children live apart during the dissolution proceeding, they shall assist their children in having contact with both parties, which is consistent with the habits of the family, personally, by telephone, and in writing unless there is a prior court order.
History of Section.
(P.L. 1998, ch. 262, § 1; P.L. 1999, ch. 280, § 1.)

Rhode Island divorce attorney

If you are in need of an attorney for your divorce in RI, contact Rhode Island divorce lawyer, David Slepkow. David Slepkow is an experienced attorney with over 22 years experience in Providence Family Court. David was voted a best three lawyer in Rhode Island by the Projo reader’s choice poll.

Legal Notice per Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer / attorney as an expert or specialist in any field of practice.

In a single moment in time, a life can begin to unravel.  Sadly, Life can get bad and get bad very quickly. Within a 24 to 72 hour time period a person could be dealing with the stress of: Rhode Island divorce, Rhode Island criminal charges, Rhode Island child support, a RI custody battle as well as potential jail time. All this could occur simultaneously.

Consider this scenario, which unfortunately is all too common in Rhode Island Family Court.  There is a domestic disturbance and argument. The police are called and there is an allegation that husband pushed his wife. The police arrest the husband and charge him with domestic assault and issue a no-contact order with his wife.  Husband is now facing criminal charges.

Wife goes to Providence Family Court the next morning  and files a Complaint Protection from Abuse and gets a Restraining Order against her husband.

In that Restraining order, she seeks temporary child support as well as custody of the children.  She denies husband visitation with the children and asks that his visitation be supervised as a result of the criminal charges. Husband is desperate to try to work things out with his wife and save his marriage so decides to call his wife.  His wife notifies the police of this violation of the no contact order.

Arrest for violation of a no contact order

This phone call violated the Rhode Island No Contact order issued as a result of the domestic charges.  Husband is arrested again as a violator of the No Contact order and is held as a violator of his bail on the original criminal Charges. Husband spends 10 days at the ACI (jail) without a hearing.

New charges

The Police pursue new charges against the Husband for violating the No Contact order. Either the wife or husband files for divorce seeking custody of the children. Husband denies that he pushed his wife. Husband regrets making the phone call but rationalizes that he was trying to save his marriage or just wants to talk to his children. Nonetheless, husband faces numerous court hearings, thousands of dollars of legal fees as well as a criminal record. All of this because of an allegation of a push as well as an ill-advised phone call.

Wife seeks child support, alimony and payment of marital bills

Wife is now asking that husband support the family but husband is facing huge legal fees as well as the possibility of losing his job.  Husband falls behind on his child support as a result and faces a contempt hearing in Rhode Island Family Court for failing to pay child support. This is extremely stressful for everyone involved, especially the husband.

Rhode Island divorce lawyer, David Slepkow is also a criminal defense attorney and restraining order attorney

David Slepkow can help you resolve and unravel this mess. David Has extensive experience in Rhode Island Divorce, Family Law, Criminal law, Restraining Orders, Bail Violations, Child Support Law as well as Child Custody Law in Rhode Island. David is aggressive yet practical at the same time. He will guide you through the process of fighting the criminal charges and restraining order as well as bringing some sense of normalcy back to your life. David Slepkow has authored hundreds of Articles and Posts concerning Child Support, Family Law, Child Custody, Restraining Orders and Criminal Law Blogs, Law Articles and Info Provided by Attorney David Slepkow 401-437-1100

Legal Notice per RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer/ attorney as an expert or specialist in any field of practice.