Appealing an Order of Protection

In the business of representing men in divorce, child custody disputes and other family law matters, our firm encounters orders of protections quite frequently. It’s gotten to the point where dealing with orders of protection filed against our clients is simply a daily part of our practice. While some may argue that these orders may be granted rather leniently, judges would rather error on the side of caution than deal with a situation where they decline an order of protection, and something terrible then happens to the Petitioner asking for the order.  An order of protection is the phrase used by Missouri law, but it is essentially synonymous with the phrase “restraining order.”

           What is “ex parte?’ Ex parte is a legal phrase from Latin that means “from one party.”  It is commonly mistakenly believed to mean the same thing as order of protection or restraining order, but it does not. The phrase "ex-parte" is often used with orders of protection because “ex parte” means the legal action is initiated without the presence, knowledge or notification of the other party. In other words, your ex or soon-to-be ex files the petition for order of protection without notifying you.

Now the law does require the respondent to then be served with the petition and typically a court summons. Depending on the severity and credibility of the accusations in the petition, a judge may grant the order of protection in which case it goes into effect immediately, or the judge may not immediately grant the order of protection but schedule a hearing to listen to the merits of the case and give the respondent a chance to defend himself against the allegations. By definition, according to Missouri statute, an “ex parte order of protection” is an order of protection issued by the court before the respondent has received notice of the petition or an opportunity to be heard on it.” Thus if the order is not initially granted, but is granted after a hearing, that order from the judge would not be considered an “ex parte order of protection.”

Missouri Revised Statute Section 455.010 provides important definitions of what constitutes behavior which is adequate to give rise to an order of protection:

Abuse: Includes but is not limited to the occurrence of any of the following acts, attempts or threats against a person who may be protected pursuant to this chapter, except abuse shall not include abuse inflicted on a child by accidental means by an adult household member or discipline of a child, including spanking, in a reasonable manner:

Harrassment: engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to an adult or child and serves no legitimate purpose. The course of conduct must be such as would cause a reasonable adult or child to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner or child. Such conduct might include, but is not limited to:

a. Following another about in a public place or places;

b. Peering in the window or lingering outside the residence of another; but does not include constitutionally protected activity;

Stalking:  is when any person purposely engages in an unwanted course of conduct that causes alarm to another person, or a person who resides together in the same household with the person seeking the order of protection when it is reasonable in that person's situation to have been alarmed by the conduct.

                 

Appealing an Order of Protection granted by a Missouri Judge is possible. However, Missouri law requires a Notice of Appeal to be filed with the court within 10 days of the date of judgment. It is highly recommended to retain an experienced attorney knowledgable with the intricacies of the appeals process in Missouri.

The conduct requisite to illicit an order of protection in Missouri was reviewed in a recent appellate case by the Missouri Court of Appeals Easter District. In the case, the couple had just ended a year-long contentious relationship when the petition for order of protection was filed by the female partner. The hearing over the petition showed both sides exhibited toxic behavior toward one another, but ultimately the Judge found that the man had engaged in harassing behavior as defined by the Missouri State Statute and granted the order of protection. According to the Judge,

And I heard -- I heard evidence after that point that the Petitioner received voluminous amounts

of calls, texts from all kinds of different numbers, and it seems to me that the Respondent is --

is playing a little dumb here. I think he's falling back on, well, I don't remember what exact

numbers I might have used. I don't remember how many calls or texts we had. I think he was

probably the source of these calls based on preponderance of the evidence. It's more likely

than not he was contacting her after she made it clear the relationship was over.

Based on that reasoning, the Judge concluded that the Respondent had engaged in harassing behavior as defined in Missouri statute, and for that reason, granted the order of protection. The man appealed the Court’s ruling.

                  The male Appellant raised one point on appeal claiming the trial court erred when it granted the protective order after the hearing because the trial court found no evidence of credible physical threats or stalking, but then found that Appellant engaged in harassment sufficient to issue a full order of protection.

                  The Court of Appeals found that although the male’s numerous calls and texts after the end of their relationship were annoying and boorish, the behavior did not rise to the level of harassment because the Court determined the conduct was not likely to cause substantial emotional distress in a reasonable person. Applying Section 455.010 RSMo (Cum. Supp. 2021)1 of the Adult Abuse Act (Act), the Court of Appeals determined Appellant was not “any credible physical threat” to Petitioner’s safety because their previous physical altercations “went both ways” and “were very minor.” In accordance with the Act, the court further found neither battery nor assault occurred, nor was there stalking because Appellant’s course of conduct did not place Petitioner in alarm for her physical safety or well-being. In fact, the court surmised Appellant “himself might have some basis to ask for [an order of protection] against the Petitioner.”

                  If you are served with a petition for an order of protection in Cass County, Jackson County or any County in western Missouri, it’s important to take the matter seriously and do not ignore it. First and foremost, do not communicate with the party in any manner whatsoever. Next, if you feel the allegations are false or embellished then show up to court and argue your side of the story.  Orders of protection in Missouri stay on your record and can have negative consequences. Unfortunately once an order of protection is granted, it is extremely difficult to get the order removed. Tragically we have men call our office complaining that an order of protection is showing up in a background check and preventing them from obtaining certain employment

opportunities.

For this reason, it’s important to contact a lawyer as soon as you are served with a petition for order of protection in Missouri. Attorney Robert Davis at the Men's Center for Domestic Resolution represents clients in divorces or child custody matters with active orders of protection against them.

THE MEN'S CENTER FOR DOMESTIC RESOLUTION IS KANSAS CITY'S FATHER'S RIGHTS ATTORNEY.