Family Attorney
Sometimes, divorces go bad. It is sadly not unheard of for a person to become violent or dangerous toward their ex-spouse, harassing or threatening them to a point where an Order of Protection (OP, also called a restraining order) becomes necessary. If you are pushed to the point where you have had to obtain one, or if you have been served with one, it is necessary to understand how they may affect your custody agreement. Depending on the specific situation, it may become the first step in denying you all visitation with your children.
Anatomy of an OP
Orders of Protection are issued by judges after you file a petition with the Clerk of the Circuit Court in your area. In the petition, you simply explain why you feel a restraining order is necessary and go into detail about the abuse or harassment you have suffered. The decision of whether or not to grant the Order will be up to the judge, but if one is granted, it will be either an emergency OP or a plenary OP, depending on the timing.
Emergency OPs are usually granted without notifying the alleged abuser, and last only two to three weeks. They are granted more often than not, because most judges weigh the possible inconvenience of a short OP granted wrongly against the very real possibility that abuse would escalate in that time span and err on the side of caution. They do have all the powers of a standard plenary OP, but last only during the short time specified. They are not the same in practice as an interim OP, which is granted while in transition – that is, for example, awaiting a ruling from a higher legislative body.
Plenary Orders of Protection are the longer ones – valid for up to two years – issued after a hearing in front of a judge, and can do a variety of things such as prohibit contact with the former spouse or children, enforce a boundary limit on how close you can get to their home or school.
OPs and Their Effect on Custody
The parties in a new divorce case have an obligation to disclose any incidents of abuse at the outset. However, if your divorce has already been concluded, you are not out of luck. You can reopen the custody case by filing a motion to show there is reason to reopen.
Either way, a judge in a case that involves abuse operates under a presumption that it would not be in the child’s best interest to give the allegedly abusive parent custody (and in many cases, not even visitation) until the air is cleared. If visitation is granted, it is usually accompanied by protections put in place for the safety of both the former spouse and the child or children, for example, mandating supervised visitation or requiring a handoff of the children in a public place so as to keep one spouse’s address confidential.
The reason this is important to be aware of is that an Order of Protection can be seen as evidence toward a parental proclivity for abuse. This can be true even if the restraining order granted does not have the marital children as the object. There have been cases where restraining orders were granted against husbands, who then later were denied custody of their children because of alleged histories of abuse.
Protect Your Rights
If you have been served with an Order of Protection, you need to know your options. If you need to serve one, it can be difficult to do alone. Either way, the help of an experienced legal professional can make all the difference. The knowledgeable child custody attorneys can help ensure you have the best plan possible to obtain your desired result.