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 § 15-15-3 http://webserver.rilin.state.ri.us/Statutes/title15/15-15/15-15-
3.HTM, 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.
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” http://legal-dictionary.thefreedictionary.com/ex+parte