Protective Orders, Custody, and the Tortured Dichotomy of Abusive Partners but Good Parents
Protective Orders are important emergency tools for victims of domestic abuse. Their purpose is to quickly and safely remove victims from the abusive situation.
The court has broad authority to mandate protections for the safety of the victim(s). These mandates include orders against the alleged abuser (“Respondent”) to “stay-away” from the victim, their residence, job, neighborhood; no-contact orders prohibiting both the Respondent and any third parties acting for the abuser from contacting the victim; allow for “use and possession” of a shared home (removing the Respondent from the home in the event the parties share residence; emergency family maintenance (money) in the event the victim is financially dependent on the Respondent; or, they could also establish a custody order that lasts for the duration of the protective order (generally a year).
The custodial power of a protective order is nuanced. On one hand, the courts in Maryland recognize that a bad or abusive partner is abhorrent, but its not necessarily indicative that an individual is a bad parent. It’s a thin, tortured line to walk, and boy do the courts walk it.
If the parties have children together when a court grants a protective order, but the court can’t find that the children were themselves victim of abuse, they will likely create a custody schedule that allows the Respondent to continue to exercise custody while the protective order is in place, without placing the victim in a vulnerable or unsafe position.
That being said, if the court finds the children have been abused, the court likely will be swift, and unsympathetic to the Respondent, and prohibit them from accessing custody completely.
Without any showing of abuse to the children, the court will be hesitant to award custody only for the safety of the victim. By their nature protective orders are done emergently to protect a victim from harm, and in the grand scheme of litigation, are fairly simple to achieve. However, they do not analyze all factors required to determine the best interest of the children. Instead they are intended to focus solely on immediate safety of the victim, the children, or both. Thus, under Maryland law, the court overseeing a protective order understands it could be making an improper decision by granting custody that could harm the children in the long run. Essentially, if appropriate custody could be adequately determined in the seven (7) day time frame of a protective order, divorce would be a much faster ordeal, but I digress.
Through the lens of a divorce or custody matter, a protective order can have incredible implications. On one hand, if a respondent is found to have abused the children, in a protective order matter, it creates a monstrous hurdle for the respondent to overcome to reacquire custody over their children. Essentially, the court will have an Order stating the Respondent has been found to have abused their children. Even if a party consents to a protective order that takes custody from them[1] the court, while its not supposed to, may hold a Respondent’s willingness to give up custody for the sake of consenting against them. In a situation like this, where a Respondent that feels they’re going to be found guilty of abusing their partner or lose custody by consenting, may want to position their case to defend allegations of abusing the children, and punt, or rather, not waste time on some potentially weaker defenses.
This is not one sided however. If a party attempts to gain custody through a protective order and fails, it could well create a hurdle against the Petitioner (alleged victim), by showing their inability, or unwillingness to foster the co-parenting relationship with the Respondent that the court sees as crucial to the healthy development of a child. It could also show that a Petitioner is more focused on creating conflict to “win” a custody situation, rather than creating a situation that is in the best interest of the children.
Protective Orders are incredible legal tools to remove victims from abusive situations, and can help paint a broad picture in a divorce or custody matter if legitimate and successful. But it can be a double edged sword if a party attempts to fraudulently obtain one to quickly gain a “leg up” in a custody battle.
It is always a good idea to speak with an attorney prior (or attorneys Pryor, Sodergreen(s), or Warner in our office) to filing a protective order to ensure you are making the best decision possible.
[1] This does not necessarily apply to a protective order that is consented to, where the parties negotiate a custody arrangement that allows the Respondent to continue to see the children.
