Possible Protective Order with No evidence?

[jamestim98]

What is the name of your state (only U.S. law)? Missouri

My brother is in the process of getting a divorce from his current wife. The divorce hearing is only weeks away and his soon to be ex wife has filed for a order of protection. As part of the divorce my brother and his wife are in a child custody dispute. She is asking for full custody as part of the protection order. She is claiming that he threatened her life. They were the only people present during this event. My brother says that while he may have raised his voice, he in no way threatened her. Until this event they were living together. He is staying with family on the advice of his lawyer even though the temporary order of protection was denied.

The temporary protection order was denied and a date for a hearing was given. My question is how likely is it for the permanent protection order to be put in place at the hearing, when my brother has no history of domestic violence, no criminal record, no police reports have ever been filed, and there are no witnesses to him ever having been abusive? Also will the timing of her filing seem fishy to a judge?

Thanks you,

J

 

[st-kitts]

What is the name of your state (only U.S. law)? Missouri

My brother is in the process of getting a divorce from his current wife. The divorce hearing is only weeks away and his soon to be ex wife has filed for a order of protection. As part of the divorce my brother and his wife are in a child custody dispute. She is asking for full custody as part of the protection order. She is claiming that he threatened her life. They were the only people present during this event. My brother says that while he may have raised his voice, he in no way threatened her.

While it is understandable (expected) that you would believe your brother over your sister in law, there are only two people that know if he did or didn't threaten her. She claims he did and he claims he didn't.

What is the name of your state (only U.S. law)? Until this event they were living together. He is staying with family on the advice of his lawyer even though the temporary order of protection was denied.

That is a smart move on his part as it protects him (somewhat) from future claims on the part of your sister in law. He would be wise at this point to avoid any time alone with her.

The temporary protection order was denied and a date for a hearing was given. My question is how likely is it for the permanent protection order to be put in place at the hearing, when my brother has no history of domestic violence, no criminal record, no police reports have ever been filed, and there are no witnesses to him ever having been abusive?

The very nature of domestic situations is that there is unlikely to be outside witnesses. Abusers (in cases where the abuse can be later verified) tend to put one face on in public to family and friends and another face entirely to their victim. The absence of police reports and convictions in a civil case is not necessarily a deal breaker. If those things existed, he might be in CRIMINAL court and facing a criminal no contact order...

A single threat could be enough in some jurisdictions to gain a PPO, if the plaintiff’s testimony is deemed credible and the threat is serious and the judge decides to act with an abundance of caution. A PPO is a civil action (it does not go on a criminal record) and the burden of proof is a preponderance of evidence. Your sister in law’s testimony of events she claims to have experienced is evidence, as is your brother’s testimony. It will come down to whom the judge finds more credible.

Some judges operate on a “better safe than sorry” mode, since women have been denied PPOs in situations similar to this (their word alone as proof) and ended up dead and that tends to bring bad publicity for a judge. It may come down to the credibility of your SIL and the particular judge.

Also will the timing of her filing seem fishy to a judge?

J

Possibly. Which came first the chicken or the egg? Did your brother threaten her because they were in the middle of an acrimonious custody dispute? Or did she falsely accuse him because they were in the middle of an acrimonious custody dispute? The timing of both claims could be based/blamed on the dispute already in progress.

It sounds like your brother is listening to his counsel in terms of staying away from his SIL and I think that is a wise move. The good news for him is that even if the PPO is granted for your SIL, it is actually not very likely that the child would be covered by the order.
Good luck.

 

[jamestim98]

st-kitts,

Thank you very much for your reply. As you understand this is a stressful time and your information is very helpful.

I also meant to ask, does the fact that the temporary protection order was denied make a long term protection order less likely?

-J