The Siren’s Song of Consenting to a Protective Order

Imagine this: Your spouse filed a protective order to get a leg up in your custody case. They claim you physically hit them and the kids. But you didn’t do it. You weren’t even home at the time they say you did it. You think, no problem, you’re obviously going to win. You don’t need an attorney when they so obviously lied.[1]

You walk into the courthouse. Empty your pockets, take your belt off, placed your bag on the belt. You walked through the metal detector. You pray you’re not the one that gives the sheriff a reason. The alarm goes off anyway, of course it does. You handle the early morning embarrassment, and stare at the docket board waiting for it to cycle to your name (surnames a-c we all say mean things about you). You walk to your courtroom and you’re surrounded by 10-20 other people. All in the same or similar circumstances as you. The gravity of your situation sets in. You reread the petition that was served on you. Your spouse is asking for full custody of the kids for protection against you. Only then, they write, can the children be safe.

The judge comes out and explains how they run their courtroom. They call the first case. You listen to the cases. Most of them are like yours. One spouse accuses the other of abusing them. The other swears they didn’t do it. They give the court their reasons why protective order shouldn’t be granted. Just like you plan to. The Protective Order gets granted anyway.

This happens a couple of times. Suddenly you begin to worry. Should you have hired an attorney?[2] Your kids are on the line. Your mind is racing. What if there’s some ‘Lawyer Mind Trick’ that you need to help you get out of this.

Your case gets called and the judge asks you what the two of you want to do. Consent or litigate. You want to move forward with trial. Right? As if they heard your thoughts the judge addresses you directly. If you consent there will be no finding against you. What’s that mean? If you consent, we might not award them custody. Well if you’re not losing custody then maybe you don’t need to fight this. If you consent, you’re basically saying you consent to not abusing harassing or stalking your spouse. Oh . . . is that all this is?

So, you Consent. But that’s not the end of it.

Like the judge said, in theory, you are just consenting to an order that states you will not abuse the other party. Many courts will forgo any custody discussions if there’s a pending custody matter for a consent. It seems simple enough. But we’ve all seen enough television drama’s to know, things have a tendency to go awry.

It may seem appealing. But just because a protective order was consented to doesn’t mean you’re off the hook. You are still walking out of the Courtroom with a Domestic Violence Order entered against you. Sure you didn’t abuse your spouse or children. Sure you consented, and there are no findings against you.[3] But there were no findings for you either. All you have to show for your consent is a very public domestic violence order.

This is likely going to make a mess of your custody case. Just the mere existence of a protective order will put a bad taste in anyone’s mouth who is reviewing the case. It’s not the end all be all by any means. Chances are you’ll still be able to watch your children graduate high school. And in a year or more during your final hearing, yes, you will be able to explain everything that occurred to your heart’s content. But in the meantime, you or your lawyer, are negotiating settlement and custody terms with your spouse’s attorney other side. You ask about vacations, holidays, events, etc. And that protective order you consented to will rear its head, again and again and again. The reason you consented in the first place will be long lost; it simply won’t matter to anyone on the other side why the order exists.

Is this the same in every case? No, the circumstances can vary dramatically from person to person. But it can make settlement and negotiations very difficult just because the Domestic Violence Order exists.

From my perspective Consent was made for two reasons. To allow people that did abuse the other party to soften the blow of the consequences in exchange for a quick hearing; and judicial economy.[4] And for those two functions, it works brilliantly.

But for the individual who didn’t abuse their significant other;[5] who just wants to get it over with; who is scared of potentially losing the case, it can be very damaging.

The ability to consent to a protective order is merely a tool; and it serves it’s purpose. But tools don’t fit perfectly for every scenario.

From the moment you step into a courtroom, something changes. Suddenly your story has real consequence. I understand the fear and anxiety someone may feel waiting to have their actions judged. Those feelings are compounded when a judge looks into your eyes and implies or asks: ‘are you sure,’ about your decision.  On top of that, many Lawyers that don’t practice much family law, will take protective order cases and handle it like a criminal case. This is not a bad thing necessarily, if you’re defending heinous allegations against you, someone well versed in defending felonies is a good person to have in your corner. However, they may not understand the nuances of how a protective order, will effect a custody case; which makes the idea of consenting to a protective order just as appealing to them as it is to you. After all, no findings against you is generally a good thing.

In short, there is a time to fight the allegations against you, and a time to settle. In a scenario when you didn’t do it, and you have a pending custody case. You should not consent just to get it over with, with hopes someone will listen to your explanation down the line. The other side isn’t going to forgo using the protective order against you. On the contrary, they will likely squeeze every ounce of juice from it to get ahead. Very few people (employers included) look past the mere fact the protective order exists. While I am generally very supportive of decisions to settle to avoid conflict and expense, in the case of a protective order coinciding with custody, consenting while innocent is not a solution I generally advise. The potential damage is too great.

All that said. If you did it. Consent.

Every case is nuanced, and while this reflects a general approach I have, it should not be construed as legal advice. If you have been served with, or feel the need to file a protective order, please reach out to our office to schedule a consultation. We would be happy to speak with you.

[1] I do not condone this conclusion.

[2] I am ethically obligated to say yes, yes you should have.

[3] The court didn’t determine you did anything wrong.

[4] Keeping things moving quickly in a courtroom.

[5] Statutorily speaking