Posts Tagged ‘domestic violence’

Protective Orders: What They’re NOT for

While I’m not in private practice anymore, I do take the occasional one-off type thing: those cases that will have a one time court appearance or are strictly consulting, or are basic estate planning–that sort of thing.  Today I had a hearing defending a client in a motion for a permanent protective order.

I truly believe in protective orders.  When they are needed, one should ABSOLUTELY get one.  That said, I ALSO feel strongly that protective orders should not be abused.  If one is simply trying to control another person, or force a custody order, or simply to “get back” at another person for some perceived slight, getting a protective order is absolutely inappropriate.  Personally, I think people who get ex parte protective orders for the wrong reasons should have to pay the other person’s costs and attorneys fees when the motion and temporary PO are dismissed.  And maybe have some sort of sanction thrown at them by the court, like being ordered to do community service.

My client this morning who I was defending was in a situation where the protective order was being used as a tool to try and control and manipulate him.  The Petitioner in this case, his baby mama, was not in need of protection by the court.  They’re not even Utah residents–they’ve both been living in California up until she took off and came back to Utah, taking their tiny baby daughter with her.  He filed for custody in California a week or so after she left, when it became apparent that she couldn’t be trusted to allow him contact with his child.  And 3 weeks later, after dodging–but finally being served– with the California court papers, Baby Mama filed for a protective order.

Long story short, I won this one.  The protective order motion was denied, and the ex parte/temporary order was dismissed.  The reason I won is because my client was excellent at documenting stuff–he saved all the texts, emails, and Facebook messages the two had exchanged.  And he was totally upfront with his less-than-perfect behaviors.  He had also not been abusive to her–in fact, SHE had assaulted HIM; SHE had been the one threatening HIM. And in the end, we were able to prove that Baby Mama did not meet the requirements to get a protective order against my client.

Gifts from Client 4-19-18

Gifts from my client :).  He was very grateful, and very nice. The best kind of client to have.

I like to win.  A lot.  And when that win can knock down what I see as abuse of  protective orders, and protect a person from losing constitutional rights in a quasi-criminal action, all the better.  I hate people who cry wolf.  They truly degrade the value of the protective order, which hurts everyone out there who honest to God needs one.



Fear makes the wolf bigger than he isAs a noun, fear is defined as “an unpleasant emotion caused by the belief that someone or something is dangerous, likely to cause pain, or a threat.”  As a verb, to “be afraid of (someone or something) as likely to be dangerous, painful, or threatening.”  Fear can be a huge motivator to either do, or NOT do, a particular thing.  Sometimes fear is based in reality; sometimes, just in the perception of reality.  Fear can be crippling, can prevent one from taking necessary, reasonable action, or can motivate one to take actions that are unreasonable, dangerous, or out of proportion to the circumstances.

So what does that have to do with the law?

Family law actions are emotional things.  While the divvying up of assets, assignment of debts, allocation of custody and parent time, and awards of child support and alimony are black and white things, underlying the entire process is a mess of emotions, largely unpleasant ones.  Anger, pain, rage, desperation, panic, despair, sadness, frustration, helplessness, hopelessness….Swirling in with that horrible mix is Fear.

Fear is a huge part of any major life change….fear of the unknown–what happens with my budget when I’m limited to x amount of dollars a month?  What happens to my retirement goals when I have to pay out x dollars a month?  Why should I have to pay money to this person who is hurting me?  When will I get to see my kids?  What if my ex makes my kids hate me?  How will I pay all the expenses I need to for my kids?  What if I can’t pay the rent on this child support/alimony amount?  How am I supposed to get a job and take care of my kids at the same time? Who’s gonna hire me???  Is anyone ever gonna want to be with me again????

I would suggest that much of the reason people behave irrationally, do dumb things, say dumb things, try to avoid legal action, or any of the thousands of different ways people end up hurting themselves in family cases is out of fear:  “If I avoid the process server, they can’t serve me, and this will all go away.”  “He said there’s a warrant out for my arrest if I try and show up to court….I can’t get arrested!”

Mark Twain CourageWhile legal proceedings can be scary, the best way to deal with them is through Knowledge.  Be proactive–don’t wait until the last minute to seek legal advice.  If you’re scared about a threat made by the Other, ASK someone who knows or can find out about whether there’s any truth to the threat.  If you married a bully, be ready to deal with a bully.  Is it scary?  Hell YES it is.  But avoiding it, hiding, pretending it’s not happening, remaining willfully ignorant will do more to hurt you in the long AND short run than squaring your shoulders and addressing the situation.

Case in point:

I got divorced in 2005.  At the time, I’d been a stay at home mom, had 4 kids, the oldest of which were 8 year old twins, and had no money to my own name other than what my husband brought in.  My marriage had come apart, and my mental health was deteriorating.  I couldn’t stay married and live.  And No, I’m not being dramatic when I say that.  I was scared to death.

So how did I handle it?

I rolled over and died, in a manner of speaking.  My husband hired a lawyer, who drafted an agreement taking everything away from me except for some really minimal bits of Stuff.  I didn’t fight to get custody of the kids I’d been primary caretaker of for their entire lives.  I didn’t even attempt to stay in my house, or get alimony, or ask for half of the rest of our marital, not-insignificant assets.  I signed my husband’s agreement.  That became the terms of my divorce, and gave him custody of my kids.

I flat out gave up.  Out of paralyzing, crippling Fear.  Everything my husband said about how miserable he’d make me if I tried to get even statutory minimums under the law for ANYTHING, I believed.  All the little demeaning, demoralizing comments he threw out at me, I believed.  I was terrified–terrified of a legal fight, terrified of my kids getting hurt any worse than they already were, terrified of losing my mind before it was all said and done…Terrified.  Scared.  Panicked.

And so, out of blind, crippling, numbing, paralyzing fear, I gave up.  Everything–my kids, my home, any portion of 10 years of marriage…all of it.  Without a fight.

Ask me how much I regret that.  And when you do, bring tissues, because I’m going to cry my eyes out on you, even though it’s been nearly 13 years since all that happened.fear-is-the-mindkiller

DON’T YOU BE LIKE ME.  You be BRAVE.  Find your support people.  Face your fears, even if you have to face them quietly, by seeking out help online, or at a victim’s crisis center.  Get real information.  Do a little research.  DON’T GO DOWN WITHOUT A FIGHT!  For the love of all that is good and holy, I am begging you, do not let fear take your life from you.  You can do it.  I swear, it’s hard as hell, but you CAN.  And you Must.

A final Scene from the story of fear in my life:  I am at my Aunt Nancy’s house, curled up on the floor in her bathroom, sobbing out of fear and the misery that came from letting my fear cripple me when it counted most.  She is sitting next to me, on the floor, knees pulled up to her chest, her arm around my shoulders.  She is saying, “I wish I could poor courage into your spine so you can stand.”

I say to you–Imagine me pouring courage into your spine.  Stand up. You may be afraid, but don’t let it control you.  You are not alone.

Be Brave.

Things I Care About: Do Unto Others

Golden Rule Plus

If you’ve read very many of my blog posts, you kind of start to get a feeling for things that I’m passionate about. Like

Fathers’ Rights.  I deeply believe that the best way to keep our kids whole through the divorce process is for them to have BOTH parents in their lives.  In this world of family law, where custody seems to default to moms, we should not forget that there are a lot of really great dads out there who are heartbroken at losing time to just Be around their kids on a daily basis.  While that may not be practical in a divorce,  that doesn’t mean we shouldn’t work to keep Dad there as often as possible.  And intentionally keeping a loving father from his kids IS child abuse.  We need the courts to take it more seriously, and we need a general shift in societal thinking that defaults away from thinking that single moms are always saints.


Domestic Abuse.  By this I mean ALL forms of abuse.  We tend to think only in terms of physical violence as being abusive, but psychological abuse may be far more pervasive, and can take a helluva lot longer to get over.  Victims of abuse tend to be less likely to have custody of their kids, because they tend also to have less access to resources with which to hire a lawyer in a divorce.  Moms who don’t have their kids could well have been victims of domestic abuse in their marriages, and every day of their lives without their kids is just another stab in the heart by the abuser.  We as a community (especially a community like I live in here in Utah) need to lay off judging moms who did not get custody as though they’re some sort of addict or loser.  Heaping misery on the wounded is cruel; we are better than that.


Kids.  It seems like in any divorce action, kids always end up being the Big Losers.  They don’t get any choice in their whole worlds getting thrown into chaos; in Utah, they have no choice, really, who they get to live with.  And even if they DID have the option, how do you choose between two parents you love dearly?  I remember being a freshman in college and having a nightmare that my parents were divorcing, and that I was begging them not to, and they wouldn’t listen.  I woke up sobbing, and had to call my mom to make sure that it was just a really bad dream.  The biggest pain in my life is knowing the MY kids never got to wake up from that Really Bad Dream.  I’ve been divorced nearly 12 years, and I still feel horrible every time I think about it (like now, writing this post, and blowing my nose and wiping my eyes.)


Fairness.  and Decency.  and Human Kindness. and Equity.  I mean, seriously….whatever happened to these values?  I see them evidenced in some divorce cases, but way more often it’s as though the parties feel a need to feed the fight, and take whatever they possibly can, and hurt the other person, no matter what the cost.  I know I’m way too sensitive (part of why I can’t do this family law thing full time anymore), but I don’t think it’s asking too much for people to apply a little Golden Rule into their lives, even if their lives include ex spouses.  Do unto others as you would have them do to you, ya’ll.  Or better yet, don’t do things to them that you wouldn’t want them to do to you.Even Better

And if we would all live by just that one little rule, what a wonderful world it would be.

Parental Alienation: How Many Times Do I Have To Keep Bringing this Up??

I can’t even tell you  how much I want to just RANT right now.  Instead, let’s just put it all out there this way.

From Psychology Today, June 28, 2011 (citation is below):

“Research with “adult children” of parental alienation syndrome (that is, adults who believe that when they were children one parent turned them against the other parent) confirms that being exposed to parental alienation represents a form of emotional abuse. Furthermore, these adults reported that when they succumbed to the pressure and rejected one parent to please the other, the experience was associated with several negative long-term effects including depression, drug abuse, divorce, low self-esteem, problems with trusting, and alienation from their own children when they became parents themselves.”

Just to sum up:  If you are a custodial parent, and you undermine the parent time of or relationship of the children with the non-custodial parent, just because you do not like that person, YOU ARE A BAD PARENT.  I don’t care what kind of lies you tell yourself about how fantastic you are.  YOU ARE NOT.  Trying to eliminate a fit parent from a child’s life through bad-mouthing, bashing, and brain-washing is CHILD ABUSE.  And you are an ABUSER.  

And someone might end up taking you back to court on a petition to modify based upon parental alienation.

(some scholarly work that says you are a child abuser as well…)

Parental alienation

Protective Orders–How to get one and When

*If you are currently in danger of abuse, contact your local domestic violence shelter.  In Cache Valley, Utah, that’s CAPSA.  Staff there are trained in helping victims through the protective order process.  I strongly suggest you use that resource. Y se habla español.*

Beaten Every 9 Seconds

I’ve been thinking for awhile that I needed to get an article up here about the hows and whys of protective orders.  This is in Utah, remember, so it may be a little different outside of Utah, but some of this stuff will still apply to ya’ll who are out of state, so keep reading…

Who should get one:  People who are being honest to God abused, or have a reasonable fear that they are in danger of abuse.  Physical abuse is what we’re looking for here.  If the abuser is throwing stuff at you, or breaking stuff, or abusing or threatening to abuse your pet, that would give you a reasonable fear that you are in danger of being physically assaulted.  I put that stuff in bold up there at the beginning of this paragraph because this is IMPORTANT.  DO NOT USE A PROTECTIVE ORDER TO LEVERAGE A CUSTODY AWARD OR TO CONTROL ANOTHER PERSON.  The misuse of protective orders is what takes away the value and force of one.  You cry wolf on this, and you screw it up for every other person who needs to be protected from abuse.  So DON’T.

Sexual abuse IS domestic abuse.  You CAN be sexually abused in a marriage.  Being coerced (verbally abused, harassed, threatened, etc.) to do things sexually that you don’t want to do, or being physically forced to engage in a sex act even if you are married is still rape; it’s still abuse.

Men as Victim

Men are also victims of domestic abuse…Not just women.

You don’t have to be married to get a protective order.  You don’t have to be in an intimate relationship to get one…The statute is a “cohabitant abuse” statute. If you have a roommate who’s abusive, you can get a protective order.

Also–if you are in a dating relationship with an individual who is abusive, and you feel that a protective order is the only way to stay safe and away from him or her, there is a dating relationship protective order.

The links in the paragraphs above will take you to the statutes that are the law regarding protective orders.  How Bad Get Help


Utah’s state courts website has a link on its homepage called “Protection from abuse”.  That’s the link to the page on the site…Or you can just click here.  That page has all of the forms you will need, as well as some basic instructions.  If you don’t have access to a printer or can’t download them for whatever reason, you can also get the forms from the court clerk.  Clerks are required to provide clerical assistance in filling out the forms–but not legal assistance.  They will, however, give you information on where you can get free legal info.

Fill out the forms as completely as possible.  Be detailed in describing the abuse!  I know it can be humiliating, embarrassing, demoralizing…But the court needs to be able to see exactly WHY it should give you a protective order.  DO NOT LIE.  If you haven’t been touched, but the abuser has thrown things, etc., say that.  That shows the court that  you have a reasonable fear of the abuser.

Protective Order

If you need one, seriously consider getting one.

Once you fill out the paperwork, give it to the court clerk.  The court/judge will sign an ex parte protective order if they feel that you have substantial basis to have a protective order granted.  The ex parte order is the temporary, until-a-hearing-can-be-held order.  The clerk will have the sheriff’s office serve the abuser/Respondent with the order.  It will also have a hearing date on it.  A hearing MUST be held within 2 weeks of the ex parte order being put into place.

The point of the hearing is to give the Respondent/alleged abuser an opportunity to be heard–he may not think he/she’s done anything wrong.  If the court still thinks you have reason to need a protective order, they will enter a permanent protective order.  Those stay in place for 2 years unless YOU, the Petitioner, request that it be dismissed, and can give the court good reasons you don’t need to be protected anymore.

So what if the court DOESN’T think you have a good reason to need a protective order at the start?  What if they DON’T give you an ex parte protective order?  You can still request a hearing.  HOWEVER, if you are not safe where you are with the abuser/Respondent, wait until you are before you ask for one.  The Respondent will still have to be served, and if you don’t have an ex parte protective order at that point, you may be in a bit of a dangerous position.

Stop being a victimThe court doesn’t always follow the law.  Some judges have different views on what constitutes abuse.  I had a client who had been repeatedly sexually abused by her husband.  She requested a protective order based on very detailed descriptions of the abuse.  The judge denied her request.  Why?  He handwrote this on the denial:  “Sexual contact in marriage, no matter how uncomfortable or unwanted, is not domestic abuse.”  The judge was WRONG.  Dead wrong.  My client was not in a position to request a hearing and have her husband served with it, however…So she just had to do her best to protect herself.

The system is NOT perfect.  BUT, a protective order can be part of a paper trail evidencing abuse if you need it for other legal reasons–like to get protective provisions in a divorce.  That said, you are the only one who knows what your circumstances are.  If you can’t get a protective order put in place and feel that it prevents abuse, don’t do it.  But please DO get out, get help, and stay safe.  You Are Worth It.


Cohabitant Abuse in Utah: “They don’t DO gays.”

[**Note:  I post this story with permission from my client, whose name and the name of the other party have been changed to protect my client’s privacy.  I’ve left out jurisdictional identifiers for the same reason. The picture that accompanies this post actually IS my client.  I saw the photos of her injuries prior to meeting her.  I did not recognize her when I met her from seeing this/the other pictures, and felt that no one else would either.]

I recently finished up my second non-prosecutorial criminal case.  My client, who we’ll call Beth, had been cited for domestic violence assault as a result of an altercation with her girlfriend, who we’ll call Sue.  Yes, you read that right:  my client was in a homosexual relationship where there was domestic violence.  But I’m getting ahead of myself. . .

My client retained me after being cited in this case.  What happened was this:  Beth had had previous interactions with Sue, her girlfriend, that indicated to her that Sue was trying to exert control over her.  Sue had already been verbally abusing Beth, but had never struck her.  On the day of the incident, back in November of 2010, Sue had started arguing with Beth in their bedroom about Beth’s 14-year old son.  The argument escalated, and Beth tried to leave the room and the argument.  Sue became angry and blocked the doorway.  Beth, who is 7 inches shorter than Sue, and was outweighed by 30 pounds, tried to duck under Sue’s arm.  Sue pushed her back, and then began punching Beth in the head.  Beth felt 2 blows before she was knocked to the floor.  Sue jumped on top of her, straddling her, and began punching her in the head and face.  At this point, Beth’s 14 year old son came into the room, screaming for Sue to get off of his mom.  Sue jumped up and ran out of the room, and then immediately called the police, claiming that Beth had assaulted her.

When the police officer arrived, he met a calm Sue outside the house.  There were some scratches on her chest, and her t-shirt was torn slightly at the collar.  Sue told him that Beth had scratched her and kicked her, and admitted to punching Beth, but just once, and just in self-defense.  Beth, in the meantime, was in a state of shock, and did not cooperate with the officer.  At that time, all that was apparent of Beth’s injuries was a goose-egg rising out of her left temple.

What it looks like when a woman’s girlfriend beats the hell out of her. . .And you don’t even see the height of the bump on the temple from this angle.

Not seeing a large differential in the severity of the parties’ injuries, and hearing opposing stories about what happened, he cited both Beth and Sue with domestic violence assault. (See U.C.A. § 77-36-2.2 for duties and powers of law enforcement when called to a domestic violence scene, including what to do when there are conflicting stories from the parties.)

Beth left the scene in an ambulance, and had a CAT scan immediately upon arriving at the emergency room.  As the bruising in her face developed, her eye, head, and cheek turned black from the injuries inflicted on her by Sue, her girlfriend.

Domestic violence, or cohabitant abuse, occurs anytime there is abuse between people who cohabitate–be they in a romantic relationship or just roommates. (See U.C.A. § 78B-7-102.)  The cop got it right when he issued citations for DV assault.  Whether the parties were gay or straight, they lived together, which qualifies as cohabitant abuse.  The prosecutor, on the other hand, didn’t see it the same way.  He worked a plea agreement (plea of guilty held in abeyance upon successful completion of one year probation) with Sue for simple assault–his theory was that since the homosexual relationship wasn’t recognized by the state (at that time), DV assault wouldn’t stick.  He told me this himself–in front of the cop as well, who looked at me, smiled a little, and shook his head.  I said, “It’s a cohabitant abuse statute.”  “It is,” said the cop, “which is why I cited them with dv assault.”  The prosecutor, sadly, wasn’t. . .*something* enough to see that.

You might wonder what the big deal is with calling it assault or dv assault.  Under the statute, repeated domestic violence assault convictions have enhanced penalties, as a deterrent to re-offending (see U.C.A. § 77-36-1.1).  By not prosecuting Sue on a dv charge, she will not have the enhanced penalties for future offenses, which offenses are a real possibility, given her history and personality. Further, there are statutory protections put in place to protect victims of domestic violence that are not present for victims of assault.  These protections keep the victim from being further abused, and further traumatized by the system. (See U.C.A. Title 77 Chapter 36 for the Cohabitant Abuse Procedures Act.)

It’s also a slap in the face to the actual victim in a case–regardless of whether he or she is gay or straight.  Domestic violence is not a problem that is unique to the heterosexual population, but it’s largely seen as such by law enforcement.  We had a particularly open-minded cop in our case.  He was at least willing to give the DV cite out to a same-sex couple.  That said, had Sue been a man, and had my client been assaulted by her boyfriend, chances are she would not have been cited at all.

At our first pre-trial hearing appearance, I provided the prosecutor with pictures taken of Beth’s injuries after the bruising had developed.  He was not willing to dismiss the charge, or listen to any reason concerning the statute.  We re-scheduled pre-trial for March 18th.  I called the prosecutor a week prior to the pre-trial, to see if he would be willing to dismiss based on this new evidence (and on the fact that they had absolutely NOTHING that would stand up in court to prove the city’s case against my client.)  He was unwilling to discuss at all.  We showed up at the pre-trial expecting the worst.  The prosecutor met with me prior to calling our case and told me that he was going to move to dismiss the charge–but was very quick to point out that it had nothing to do with anything I’d argued to him.  Right.

Sue showed up at the court during our appearance.  She sat herself right down behind Beth while we waited our turn.  When the judge dismissed Beth’s charge, Beth got a look at Sue’s face.  She was angry.  She left the courtroom, but lingered in the lobby.  The responding officer was again in court with us, and he told us to wait a minute before leaving, then headed out into the lobby to usher Sue out.  He came back for us, and waited with us in the lobby until Sue got into her car and actually left the parking lot.  Sue sat in her car a full 5 minutes before leaving.  I appreciated the police escort.  Sue creeped me out.  And I’d never had any actual contact with her.

My client was thrilled.  She thanked the officer, told him she understood his position.  She was very gracious.

Beth was in an abusive relationship with a man before she started living with Sue.  Law enforcement swooped in and protected her in that instance.  Not so this time.

She told me that she had been beaten by a man before, but it was nothing like what happened with Sue–Sue was utterly vicious, merciless.  She said it was absolutely staggering.  Domestic violence is not exclusive to heterosexual relationships.  The only difference between straight and gay DV is the reaction to it by law enforcement and the prosecution:  As Sue told Beth weeks before beating her black and blue, “Don’t bother calling the police for domestic violence in ________.  They don’t DO gays.”

A Red Letter Day

Today is my baby’s birthday–he’s 8.  His birthday is really rough for me.  6 years ago right now, I was spending my last night in the house I had designed with my (now ex) husband, having celebrated my baby’s 2nd birthday that day.  I was back home from my parents’, because I had promised my children I would be back by then.  But it was short-lived.  We signed our divorce stipulation the next day.  I find myself feeling really emotional on my child’s birthday as a result.  I spend a lot of time thinking about what I should have done differently, so that I could have been an actual part of his day-to-day life over the past 6 years.  I missed so much.  I am truly sickened thinking about all that I wasn’t there for.  I was around for the big stuff, of course–his first day of kindergarten, most birthdays, that sort of thing–but the smaller things I missed.  Losing his first baby teeth.  Learning to ride a bike.

My baby at 2, the month the divorce was final. . .

Putting bandaids on owies and kissing them better.  It’s really not enough for me, at this point in my life, to say that I’m here now, living just 15 minutes away, and I see him multiple times a week.  I messed up.  I should’ve done more at the time of my divorce to ensure that I could be a real part of my kids’ lives on a day to day basis.  I should have gotten custody.  And I would have, with a lawyer.

I did not.  How does that happen?  I’ve been asked this so many times.  I’ll say it again:  I did not have a lawyer for my divorce.  I didn’t think I had any money to pay one.  My husband had all the money, and he did hire a lawyer.  I was emotionally destroyed, trying hard to not hurt my kids any worse than “I” already was, and afraid to fight my ex on anything.  l did not have the strength to fight on my own.

You can learn a lesson from this.  GET A LAWYER.  Please.  I beg of you.  There has to have been a reason I went through (and continue to go through) the hell that my divorce has been.  Please please please don’t go it alone–at least get a consultation, some legal advice, or do some research on the law.  I have these great links posted here.  Read through the divorce statutes.  They’re located at Utah Code Ann. Title 30 (It’s called Husband and Wife).  Know what you’re entitled to as a bare minimum at least.  I didn’t even get that myself.

Don’t be like me.  My divorce would have been far less traumatic for myself and my children if I had just listened to the people who were telling me to slow down and do it right.  I was scared, and borderline suicidal, and didn’t think I could afford a lawyer.  You will NOT make that same mistake.

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