Let's discuss the bad, no, let's make that the absolute worst, court order in family law cases where kids are involved: The temporary order of protection, more affectionately known as the TOP.
First, a disclaimer: Some TOPs have validity, and some actually work. There are people who seriously need to be protected from abusive or threatening individuals, and are at imminent risk of harm. The resulting TOP will work if the respondent has a lingering remnant of respect for the law, or fear of repercussion -- like arrest or imprisonment -- if s/he violates the order. (Many doubt that a simple piece of paper will dissuade a truly violent person from his/her intended harm.) And the TOP is better yet if the police are quick to enforce it. These are the meritorious orders. Who in their right mind can quarrel with them?
But bogus TOPs are more often the norm, and they hurt everyone.
In meritorious cases, family court judges can become so inured to requests for TOP's that at-risk people may be denied the protection they need, sometimes with horrific consequences. It happens, and not just in big cities, either.
What about the respondent in the completely bogus TOP case? S/he is usually cut off from the kids, suddenly and indefinitely -- with little or no physical, telephone, written or even electronic contact -- while the case gets adjourned ad nauseum, based on allegations s/he never even had a chance to contest in court prior to the issuance of the TOP.
And the kids in these cases? Usually they're confused by the abrupt disappearance of one parent. If they're lucky, they won't get poisoned too much by the petitioner or his/her friends and relatives. Chances are, they will. Therapists, come on and join the gang of total strangers (judges, law guardians, child protective services, forensic evaluators, etc. etc.) now intruding on this family.
Let's not forget the petitioner, who thinks s/he has just scored big-time in the impending custody battle. S/he may not have noticed the damage s/he has just caused his/her family - which no custody award in his/her favor will ever erase. And s/he runs the risk that a very patient respondent -- one who's prepared to ride the waves of mostly negative rulings for a while, and who's hired a good lawyer - will eventually expose the phony claims. If the respondent has a fair amount of facts in his/her favor, s/he may even prove it's the petitioner who's really harming the family. Boom. Custody unexpectedly awarded to the respondent.
And everyone will have nice hefty legal fees for their efforts.
There, now, wasn't that a productive exhibition of hostility?
You point out how it could backfire and the Petitioner may loose custody if the respondent sticks it out for the long haul. This did not happen in my case or in many others I have learned about. Often false allegations are proven UNFOUNDED, (in my case right away) but to no avail. The power of a domestic violence claim, (true or false) is staggering. Many "lousy" Family court Lawyers know this and without regard for the children, will collect fees from Petitioners until the money to pay them is gone.
Sad but true!
I'm sorry your case went badly for you. The outcomes of so many of these cases are dependent not only of their specific facts, but on the lawyers and, perhaps most important, on the judges. They, however, are a whole other topic (perhaps the subject of a separate article).
As far as who is to be blamed for the prevalence of these frivolous applications? Hard to say. Maybe it's the media, which screams about celebs getting TOPs against them and highlighting their easy availability. Maybe it's us matrimonial lawyers, discussing tactical maneuvers in custody cases.
No point playing the blame game. Better to think about how to position oneself to fight and prevail against a bogus TOP, whether the petitioner is male or female. Because me? I just want to win for the wrongfully accused client. I don't much care about what group is responsible for the woes of the world, ya know?
A lot of times the false TOP is from a woman saying a man abused her - but there are men out there who will do this. My ex is one of them. I was the one who actually needed the TOP, but because he went to the womens shelter - the court now views me as the one with the temper problem.
And my daughter is the one who suffers for it.
Obviously an expeditious hearing would be one way (and in my view, the best way) to resolve the problem. Another way would be to increase the evidentiary obligations of the petitioner before issuing the ex parte order (e.g., requiring a police report or hospital record), although that could irreparably prejudice the respondent in his/her absence. Some think ex parte TOP's should be prohibited entirely but, given the validity of some - SOME - TOP's, I think that would be an imprudent move.
I hope everything works out for your sister and your family, lovely1.
--Terri
He had put tapes of kids he made in VCR's and turned the TV's up loud. It sounds just like his house on a weekend kids running everywhere playing.
Told me she had left and took the kids after his Business took a downturn.
She had demanded more control of the money but all the money came from and was in the Business he started 5 years before meeting her. He gave her total control she gave it up in a few days saying she was not that good a juggler, it is hard to keep a business and family afloat financially when times are bad.
He never did get a reason for her leaving but all those experts were there in Court and he stood alone, no lawyer just surrendered so exhausted from missing his kids.
I'm sorry for your friend's loss.
-- Terri
One other anecdote to add to the subject, anger management classes. Once again, with the mere accusation of DV, one is ordered under threat of contempt, at his expense, to patronize yet another part of the system. If he attends he's admitting guilt, if not God help you at the next hearing. What's your thoughts?? Oh, the attorney representing you would rather jump from a bridge than dispute the order with the judge.
Think about it, keystone30: Denouncing the order to go to anger management classes? Nah. Sounds to me like you're angry. Like Charlie Sheen denying he's got a problem (oh Lord, what a boring guy he is...never shuts up....). When it comes to sounding defensive vs sounding easy-going, I'd vote for the latter any day. Set it up for the other side to go ballistic while you stay calm and compliant. JMHO.
One other anecdote to the TOP debate, mandatory anger management classes. Once again, the mere accusation of domestic abuse will now require you to pay yet another part of the system. If you attend it's a court record, if you don't you're in contempt. What's your thoughts? Oh and the attorney representing you is afraid for their life to dispute the ordering of thses classes.
I suggest you contact your local county bar association for assistance.
Take care,
Terri
BTW, given what I've seen, dont worry about "max out".
Just the opposite. You're a breath of Fresh Air.
I'm maxed out on "celebrity divorce" articles. (Perhaps someone can explain to me why they are relevant.)
Henry
Henry Gornbein
NY generally stays clear of formal interim custody orders without a hearing, other than in the circumstances you describe. But when baseless TOP's are issued with "stay-aways" and there are kids involved, those TOP's are tantamount to de facto interim custody orders, and those are what I find so disturbing.
Sounds like this situation is a rampant problem in numerous states. The only solution I see is an immediate hearing...Wishful thinking....
You know how troubling I find bogus TOP's and adjournments that summarily deny a parent access to his/her kids for weeks and months at a time; I'm far from unsympathetic to the problem. I'm also bothered by the quality of members of the judiciary who promote, or condone, the unnecessary harm to the respondent parent, and to the children....
And you raise another important poin: Both parents need to comply with court orders - the one who has "visitation" (what a word!) AND the one who's supposed to facilitate it. Neither should be interfering with the parent-child relationship.
Good luck to you-
Terri
Hope the way these order's are handed out changes.
Thank's
Good luck to you and your family -Terri