Restraining Orders in Divorce

    For years, the words “restraining order” have conjured up images of abused women, cowering from their domineering husbands, but many in the father’s rights movement say that these same orders that offers honest women protection can also serve a more nefarious purpose in a custody battle.
 
“It is very clear that restraining orders are being used inappropriately,” says Dr. Ned Holstein, executive director of Fathers and Families , a Massachusetts-based family court reform organization that hears everyday from men whose lives have been destroyed by unjustified orders of protection. Of course, Holstein would not argue that domestic violence is not a very real, very pressing issue.

According to the Centers for Disease Control, domestic violence affects more than 32 million Americans, or more than 10 percent of the U.S. population. A spouse or domestic partner will batter each year, between one and three million women. Domestic violence, both physical and verbal, is the number one reason for divorce, according to a poll conducted by GfK Roper for Divorce360.com.

The results showed that about 36 percent of Americans polled said their divorce stemmed from verbal or physical abuse. That figure was higher for women – 48 percent. “We take domestic violence very seriously,” Holstein says. Still, he maintains that of the two million restraining orders issued each year, at least some of them are used to get a better footing in a divorce or custody case.   

A restraining order is a court order made to protect people from threat of pain or injury. Both men and women can file them. Only one party needs to be present in the courtroom when a temporary restraining order is issued. Often this means, for man men, that the restraining order banning them from their home is a done deal before they even know about the filing. This order states that a person is to refrain from particular acts and to stay away from particular places, usually this means that whomever is being filed against must vacate the house shared by the family immediately or else be subject to arrest. 

After the temporary restraining order is issued, there is a hearing a couple weeks later. At that hearing, both parties are supposed to be able to explain to the court why a more permanent order is or is not needed. If granted, a restraining order can remain in effect for a period of time, even several years.  Obviously for a father, this means being restrained from his children as well.  

According to Holstein, these permanent orders are almost always granted —“all evidence suggests that these hearings are just rubber stamps,” he says -- and once they are, the accused is untouchable. “It is almost impossible to defend a man accused of domestic assault as it is politically incorrect to even question a woman who has accused a man of domestic violence.”  

This is what happened to Thomas Simon, a father of two from Iowa who has not seen his children since 2001, the year his ex-wife accused him of domestic violence. “My son just turned 11, and my daughter will soon be 15.  I haven't seen them since they were 4 and 8,” Simon says. According to Simon, he once caught his ex-wife reading a Web site that advised her to keep hitting her husband until he hit her back. By doing this, she could accuse him of domestic violence with a clear conscience.  

“During the divorce, she admitted there was never any violence between us, but in an effort to halt visitation, which even the judge admitted she was trying to do, and for no good reason, she punched me on the forehead as hard as she could hoping I would hit her back. I didn't,” Simon says.   

Later, an altercation with his former father-in-law did result in violence when Simon was punched in the nose and mouth. “The resulting restraining order was only between me and her, and did not involve the children, which I welcomed because it would prevent her from instigating violence once again. Nevertheless, having this incident on record later helped her achieve her goal of eliminating me from their lives.”  

Eventually, because of the accusations his ex-wife heaped against him, she was able to terminate Simon’s rights to his children. “Of course they (the courts) concluded I ‘abandoned’ my children, when the truth is I would do anything for them and nearly seven years later still struggle very much with not being able to see them. The only thing I ‘abandoned’ was hope that anything other than gender and money would ever matter in Mahaska County, Iowa courts,” Simon says.