Domestic Abuse Issues: Final Protective Orders

The final Protective Order hearing is often the most influential and important hearing in the divorce process.  If the court grants a final Protective Order, one of the parties is removed from the house for a year, custody of any children is usually awarded to the Petitioner as well as emergency family maintenance.  The entry of a final Protective Order creates a status quo which is difficult to dispute at a subsequent divorce or child custody hearing. Also, a finding of abuse at a Protective Order hearing is considered an established fact when the same issue is raised in a divorce or child custody hearing.

Unlike a TPO, a final Protective Order requires the Petitioner to prove abuse (which includes threats of physical harm and stalking) “by clear and convincing evidence”.[1]  Unlike the TPO hearing, the Respondent has the right to be present with his attorney at the final Protective Order hearing and given an opportunity to respond to the accusations and contest the evidence against him. 

The “clear and convincing evidence” standard is intended to require the Petitioner to provide proof of his or her accusations.  Usually the testimony of a witness or other corroborating evidence -- like medical records or photographs depicting injuries or evidence of past abuse -- is required to meet the “clear and convincing” standard for proof in these cases.  In cases where one party says one thing and the other party denies it – without any further proof – the petitioner’s uncorroborated testimony will not ordinarily provide sufficient proof (“by clear and convincing evidence”) necessary to obtain a final Protective Order in a domestic violence hearing.

If the Court does not conclude that there was “clear and convincing evidence of abuse” (or threats of abuse), then the petition for a final Protective Order will be denied and the Respondent can return to the house.  If the final Protective Order is granted, the court can award support (called Emergency Family Maintenance) or visitation with any children.[2]  If the Respondent violates the final Protective Order by contacting or harassing the Petitioner, he could be found in contempt of court -- a criminal violation that could result in incarceration.

</hr>

[1]  As opposed to other civil cases where the standard of proof is merely “a preponderance of the evidence” (or 50.1% likely), “clear and convincing evidence” requires a higher level of proof to support a Protective Order finding abuse.

[2] Usually pickup and drop-off for visits occur curbside, or at a police station, or under court-ordered supervision depending on the circumstances, to limit contact between the parties during the protective order period.