By exploiting legal mechanisms designed to protect actual victims, here are ways that fraudulently seeking a protective order can create an unfair advantage:
- Immediate Restriction on Contact and Access
- Temporary Orders: When a protective order is filed, courts often issue temporary or emergency orders that may prohibit the accused party from custody of and limited to no contact with their children and being ordered to pay child and/or spousal support (while simultaneously having to scramble for new housing—see below) sometimes without the accused spouses/parents having an opportunity to present their side of the story before the order is issued.
- Loss of Access: This can result in the accused being excluded from their homes and temporarily losing access to their children.
- Prejudicial Dangers
- Court Perception: Protective orders are issued to protect against imminent harm, so their existence can lead judges in subsequent divorce or custody cases to perceive the accused as at least a potential threat, or an actual perpetrator of abuse at worst—even if the claims are false.
- Bias:
- Judges may err on the side of caution, prioritizing the “safety” of the applicant and children, which unfairly disadvantages the accused.
- Judges may develop a personal animus for the respondent, leading them to mistreat the protective order respondent.
- Reputational Damage
- Social and Legal Stigma: Being accused of abuse or harassment, even falsely, can damage the accused’s reputation in court and in the community, making it difficult to garner sympathy or fair consideration.
- Impact on Custody Decisions
- Best Interests Standard: Courts prioritize the “best interests of the child” in custody cases. A protective order, even if based on false claims, can paint the accused as abusive or dangerous, potentially undermining his/her chances of retaining custody of children or being awarded custody (whether sole custody or joint) or substantial visitation rights.
- Parental Alienation: The applicant may use the protective order to limit or destroy the accused’s relationship with their children, claim that the existence of the protective order “proves” the accused to be abusive or neglectful, fostering an environment of alienation.
- Property and Financial Control – Financial Hardship
- Exclusive Possession of the Home: Protective orders often grant the applicant temporary exclusive use of the marital home, which can:
- influence property division later;
- cause the accused to incur crushing debt, as he/she often finds himself/herself having to incur duplicate housing, transportation, and other expenses on top of being ordered to pay for these same expenses for the petitioner.
- The accused may be required to pay temporary support or legal fees for the applicant, further disadvantaging them during the divorce proceedings, e.g., leaving the accused unable to afford an attorney.
- Delays and Costs
- Legal Strategy: The applicant may use the protective order as a tactical move to prolong proceedings, driving up costs for the accused and wearing them down emotionally and financially.
- Pressure to Settle
- The accused may feel pressured to settle divorce or custody disputes unfairly to avoid prolonged litigation or further damage to their reputations.
- Difficulty of Disproving False Allegations
- Burden of Proof: While protective orders are civil matters with a lower standard of proof than criminal cases are held to, those accused of violence and abuse often find themselves “presumed guilty” and thus placed in the position of having to disprove the false allegations against them. This can be challenging in the best of circumstances, but nigh unto impossible if there are no witnesses or proof.
- Lack of Effective Penalties and Disincentives for False Allegations
- No Real Legal Remedies: While falsely reporting abuse to law enforcement officers and to courts are crimes, false accusers are rarely, if ever prosecuted.
Courts that violate the law in the name of preventing crime (abuse) are themselves criminals. Committing one crime to justify another creates nothing but more crime victims.
Utah Family Law, LC | divorceutah.com | 801-466-9277