My wife filed a false restraining order

Falsely filed orders of protection are a serious problem affecting predominantly male fathers.

The enacting of legislation to protect women from domestic violence has been a major step forward toward equal rights in the United States. Yet this same tool used to protect women is being used not for protection, but as a weapon to attack men via unfounded accusations. It’s no secret restraining orders (what we in Missouri call orders of protection) are abused, particularly in domestic cases such as divorce and child custody matters. No doubt, orders of protection are an absolute necessity because these laws were formed in response to a tremendous problem, that is men stalking, abusing and even killing their partners and ex’s.  Men are unfortunately left to handle to consequences of false orders of protection on their own with little to no help from the court system.

The problems I face as a men’s family law attorney and the problems you face as a family law litigant, with regard to orders of protection, involve navigating the consequences of the commonplace abuse of orders primarily by women. Legislatures are usually slow to act and often overreact to problems in society.  Domestic abuse is a significant problem, but unfortunately the system we have created to protect the filer (primarily women), often punishes the subject of the order of protection (usually men) when false allegations of domestic violence are made.

They go by many different names depending on the state or jurisdiction, but orders of protection, restraining orders and no contact orders (NCOs) are legal processes formulated to protect individual(s) from harm by prohibiting any contact or communication between parties when there is an “allegedly” verifiable threat of physical violence in the relationship.  The government saw a problem, that women needed protection from abusive men, and the current system is what was created to deal with that problem.

Like any solution to any problem, there are often side effects, other, often unforeseen and unintended negative consequences stemming from the creation of orders of protection by the Missouri legislature.  The primary negative consequence or side-effect is that women have learned to weaponize orders of protection to use them to their advantage, most frequently in domestic litigation like divorce and child custody matters.

Changes certainly need to be made. These days when I take on a new client, I am expecting them to tell me their ex filed for an order of protection against them.  What are the potential effects on men when a woman provides false information on a filing for a motion for an order of protection in Missouri?  The repercussions of these false orders of protection filings are significant and may include financial cost to the victim of the wrongful order, embarrassment of the victim, damage to the parent-child relationship, parental alienation, and damage to the emotional wellbeing of the children involved. This list is not exhaustive, and it is hard to underestimate the traumatic effects that can result in these situations…Trust me!

Men Suffer Most of the Consequences of Falsely Filed Orders of Protection

To illustrate the potential consequences of erroneous orders of protection in Missouri I will share the story of Client A.  Client A shares joint physical custody and joint legal custody of one minor child, age 7, with his ex.  For whatever reasons, the ex-wife has not healed at all from the divorce and is hell bent on causing Client A as much pain as possible. On multiple occasions she filed motions for false orders of protection against Client A solely based on false allegations of child abuse.  Consequent to the orders of protection she was able to obtain, Client A did not see his daughter for two separate periods of three months and one month.  The ex-wife also had criminal charges filed against Client A, for which he had to hire a criminal defense attorney. In the end, she dismissed all of her accusations, and there were no consequences for her for any of it!

Can you imagine what it must feel like to be wrongfully accused of physically, emotionally or sexually abusing your own child?  And it’s not just the effects on the respondent of the false order of protection, most importantly it is the child(ren) who are the true victims. When a child is already traumatized from a divorce or separation, the significance of the added stress of not being able to see one parent cannot be overstated.  Psychologically, being wrongfully withheld from one parent is very damaging to a child’s development and self-esteem.

The abuse and wrongful filing of false orders of protection and restraining orders has become an epidemic.  Laws which were designed to protect (primarily) women from domestic abuse are being used unlawfully to punish partners and former partners (typically men).  It would be an understatement for me to say it is a pet peeve of mine when women lie or exaggerate claims in order to have a restraining order placed on their enemy ex.  It’s absolutely appalling when women make up lies to punish their ex and this results in a father not being able to see his children for an extended period of time.  This is pure parental alienation and it is emotional abuse. Women who do not understand or care what their actions do to their children should not be making important decisions regarding that child’s upbringing.

Missouri Courts are not able to do much about false orders of protection

Missouri Revised Statute 455.523 deals with orders of protection in Missouri.  According to the statute, “ Any full order of protection granted under sections 455.500 to 455.538 shall be to protect the victim from domestic violence, including danger to the child’s pet, stalking, and sexual assault….”.

Why do women file false requests for orders of protection?

1. Punishment:  Revenge, they want blood.  She wants to punish the person responsible for breaking her heart … or punishment for previous behavior …  or perhaps she can’t get over the fact that you have moved on. “Hell hath no fury like a woman scorned”  -The Mourning Bride by William Congreve.

2.  Control: Many people, particularly individuals suffering from alcoholism (that’s another blog), struggle with control issues.  These type face hard times particularly during break-ups because they are not able to control everything as they’ve tried to in the past, and orders of protection are often a tool they use to attempt to regain that feeling of control.

3. Legal strategy: to frustrate the opposing party and encourage them to settle and give up.

4.   Parental alienation: to prevent the child from having a relationship with the other parent.

5.  Jealously over a man’s current relationship with a significant other, or jealousy over his significant other’s relationship with the children involved in the dispute.

6. Fear of losing custody of the child.

7. Her friend tells her to. Typically, a woman hears about filing a false restraining order from a friend or reads it online.

Perjury, defamation, malicious prosecution???   Missouri Revised Statute 575.040 states, “a person commits the offense of perjury if, with the purpose to deceive, he or she knowingly testifies [even in a request for an order of protection] falsely to any material fact upon oath or affirmation. Are women committing perjury when they lie to get orders of protection granted? Of course they are! 

Defamation in Missouri occurs when a false statement of fact is communicated to others, harming the reputation of the person…. Are women liable for defamation when they lie to get orders of protection granted? In most instances, probably.  In Missouri, a legal claim for malicious prosecution must prove that a prior legal action was started or continued against the plaintiff, and that the defendant started or continued the proceeding, that it ended in the plaintiff’s favor, that the defendant did not have probable cause and acted maliciously, and as a consequence the plaintiff suffered damages. Are women liable for malicious prosecution when they lie to get orders of protection granted? In most instances, yes.

When a person motions a court for an order of protection against another individual in Missouri, they are swearing under oath to the truthfulness of the information provided. The Missouri Supreme Court has created form AA40, Petition for a Court Order of Protection. Above the signature line, the form states, “ I swear or affirm under penalty of perjury the facts are true according to my best knowledge and belief.”  Why then are women repeatedly able to get away with lying on restraining orders with no repercussions whatsoever?

Missouri prosecutors and judges simply have little interest in punishing women who weaponize restraining orders, regardless of the damage it causes to the victim or their children. And in some respects, who can blame them? They simply have bigger fish to fry.  Courts have seen women beaten and killed by their male partners for centuries, so big deal if a few men have to go to court a few times, pay some money and not see their children for a few months. Well it certainly is a big deal if it involves you and your child.

In Missouri, malicious prosecution lawsuits are not favored by Courts, meaning one needs a very good case with ample evidence in order to be able to succeed in court with the claim.  The Plaintiff in a malicious prosecution case has a tall burden to overcome because Courts require a Plaintiff to prove six elements in order to prevail: 1) Commencement of an earlier suit against plaintiff; 2) instigation of the suit by defendant; 3) termination of the suit in plaintiff’s favor; 4) lack of probable cause for the suit; 5) malice by the defendant in instituting the suit; and 6) damages to plaintiff resulting from the suit. ⁶ State ex rel. Police Retirement Sys. of St. Louis v. Mummert, 875 S.W.2d 553, 55 (Mo. banc 1994) (emphasis added). 

What does “probable cause” mean for the purposes of proving vexatious litigation for filing a false order of protection?  Probable cause exists when there is a reasonable belief in the facts alleged along with a reasonable belief that the claim may be valid. To put it another way, probable cause exists when it appears a reasonably prudent person would have believed and behaved under the same or similar circumstances as the person did who initiated the legal action.

So what do you do if you have an order of protection issued against you? First, stay calm! There is a correct course of action to take and that begins with consulting with a qualified family law attorney who is experienced in representing men who have false orders of protection filed against them. The following is a list of defenses to orders of protection.

Defenses To False Orders of Protection:

1.     Lack of Evidence: Typically, the most simple and effective defenses

to an erroneous order of protection is simply to demonstrate the absence of evidence to support the allegations made by the party requesting the order of protection.

2.     Improper Motive:  If you illustrate to the Court that the person who filed for the order of protection was motivated by personal gain or potential harm to the respondent (THIS!) when they filed for the order of protection, it will hamper the effectiveness of the claim.  To aide in showing motive, you can prove a history of similar conflicts including previous false allegations, or a desire for retaliation.

3.     Inadequate Grounds: Orders of protection must be based on valid grounds, such as a previous history of domestic violence, harassment, or physical threats of violence. Challenging the validity of the grounds for requesting the order of protection is an excellent defense against claims of misuse.

4.     Good Faith Compliance: If the respondent can demonstrate that they have made genuine efforts to comply with the terms of the order of protection, it is an effective defense of abuse allegations. Keeping records of attempts to maintain distance, adhering to communication restrictions, and seeking legal guidance from an attorney can strengthen this defense by showing the Judge you are taking it seriously, even if the other party is not.

5.     Modification or Dismissal: In cases where the order of protection is overly burdensome or unjust, seeking a modification or dismissal of the order can be the best course of action.

While clearly there is abuse going on with regard to orders of protection in Missouri, I’m not holding my breath for the Missouri Legislature to act and neither should you.  Yes, it is unfair men must suffer the consequences for the past actions of other men (those who abuse women), but like my Dad said, “if you want fair, go to Sedalia”…meaning life isn’t fair and the Missouri State Fair is in Sedalia. We men will have to continue to suffer the consequences of erroneous orders of protection for the foreseeable future. My hope is that courts will continue to see the pattern of wrongful use of the system and make decisions accordingly. I will say, this is happening! I know of at least two area Judges who share my disdain for the weaponization of orders of protection.

 *Side note: In this blog I refer to women as those who typically file restraining orders, and men as those who are usually on the receiving end of such orders. Obviously, I realize some men pull the same crap and lie to get orders of protection. However, in the majority of cases, it is the woman who files. I am a family law attorney in Pleasant Hill, Missouri who represents men, and men are the target audience of this writing.