Vail Daily column: Understanding protection orders
October 4, 2016
Something I encounter all too often in my practice is protection orders.
A protection order—or restraining order—sounds like precisely what it is. It is an order issued by the court to protect one person from another. Or, considered inversely, it is an order of the court restraining a party from contact with another. Commonly — but not always — protection orders crop up in either one of two venues; in criminal proceedings or family and domestic settings.
In the civil setting (that is, in non-criminal proceedings), the standard for obtaining a protection order is that the party seeking the order must attest that he or she is in "reasonable apprehension of imminent physical or emotion harm" at the hands of the party against whom the protection order is sought. Stated a bit more simply, the party seeking protection must swear an affidavit holding that if the party against whom the order is sought is not restrained, he or she may suffer physical or emotional harm. The order sought may extend not only to the party seeking it but to others as well such as minor children living with the petitioning party. Once the affidavit is sworn out, the petition for restraining order must come before a judge to consider and, if the petition is found to be meritorious, the order may be issued.
A typical scenario may look something like this:
A happy couple is no longer happy. Financial troubles are crushing them. When he feels stressed, he drinks. When he drinks, he swells with anger. The financial troubles are all her fault; she spends too much and she doesn't respect him. And what about those rotten kids from her first marriage that he supports? They're bleeding him! He means to bring this to her attention and does so smack in the middle of the swirling vortex of his binge.
She, of course, protests. The verbal battle swells like a storm tide in a hurricane until, at last, he lashes out. Maybe, he doesn't strike her, being content to shower her with threats and insults and perhaps a bit of spittle as he makes his point. The morning finds her at the sheriff's office swearing out an affidavit.
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If the order issues, then the restrained party is almost always temporarily put out of the shared abode. The order will name the protected parties — in the above scenario, the female partner and the minor children — and will not only restrain the alleged aggressor from the home, but also from the protected parties' places of work or school. What's more, a circumference or halo, is usually drawn around the protected parties — say, for example, the restrained party may not come within 100 yards of any of them. Neither may the restrained party contact the protected parties by any means whatsoever; neither by phone, letter, email, text or smoke signals.
Where restrained parties often foul up, is in employing a surrogate. "Okay," he may reason, "I can't contact her. But my ol' pal, Bob, can pass a message or two along." Wrong. What one may not do directly, one may neither do through a third party. If the restrained party is restrained, then anyone acting on his behalf is equally restrained.
Violate a protection order — intentionally or not — and, hi ho, hi ho, it's off to jail you go. You can explain it to the judge in the morning.
Let me illustrate with a real-life story.
Several years ago, a client of mine was the subject of a protection order. She was restrained from contacting her ex-hubby. One evening, unbeknownst to one other, they were dining at the same restaurant, one with high-backed booths and dimmed mood lighting. Nature called her to the loo. And she passed his table where, lurking in the dim recesses of his deep-backed booth, she failed to see him. But he saw her! Before she knew what hit her, she was handcuffed in the back of a patrol car.
"I never saw him!" she protested.
"Tell it to the judge," the deputy replied.
If a protection order issues, then it will be temporary at first. Within a couple of weeks, the protected party will have to come to court, tell her story, present evidence and give the restrained party an opportunity to defend himself. Only if the protected party's case is proved beyond a reasonable doubt may the order be made permanent.
In the criminal setting, protection orders are automatic. If a party is charged with a crime against a person (as opposed to a crime against property), then the presumed victim of that crime will have a protective net thrown up around him until such time as the accused is either acquitted or found guilty. Violate a criminal protection order, and you will be seeing the inside of a jail cell. If a felony has been charged, then prison time is mandatory.
The logic behind protection orders is sort of the same as going to a neutral corner in a boxing contest. When things are getting a little too hot, go cool off a while and give everyone a chance to catch their breath. While often an imperfect solution to the problem, the hope and intent is to prevent the escalation of potential violence while impeding the restrained party in relatively minimal ways until the whole mess can be sorted out before the court.
It is worth observing that a protection order in New York or Denver is qualitatively different than one in Happy Valley. In a city, one can get lost among the multitudes and a chance encounter is minimal. Here, within our narrow confines, the chances of bumping up against your new adversary is many multiples more likely. The best advice is this; get away quickly and mum's the word.
In the immortal words of Rodney King, "Can't we all just get along?"
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.
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