Protective Orders in Oklahoma

By design, protective orders are very easy to request and obtain. The ease of seeking and acquiring a protective order without a lawyer can be deceptive in that many protective order defendants feel that they too do not need a lawyer. It is a mistake to be dismissive of the ramifications associated with allegations in a protective order and the consequences of a protective order finding at a hearing.

Protective orders have serious potential criminal implications and profoundly impact divorce and child custody proceedings.

A protective order in Oklahoma is a civil court order designed to shield individuals from domestic abuse, harassment, stalking, or rape. So, by definition, if someone is seeking a protective order against you, they are accusing you of criminal activity, even if they never contacted law enforcement and never made a police report. If you go to a protective order hearing without representation and admit to certain behavior, it is possible that a criminal investigation and arrest could follow, and your statements in the protective order hearing could be used against you.

If a protective order is issued on either an emergency basis or long-term basis, any violation triggers a criminal charge, even if the underlying protective order is later dismissed. While the order itself is issued in a civil court, any breach of its terms constitutes a criminal offense. This means that actions like contacting the protected person, coming within a certain distance of their home or workplace, texting or calling the petitioner, or any other violation of the order’s specific prohibitions will result in arrest and criminal charges. A first-time violation is typically a misdemeanor. Subsequent violations may escalate to a felony. If a protective order violation results in physical injury, the penalties are even more severe.

When a protective order is filed between spouses, it almost invariably becomes entangled with any concurrent or subsequent divorce proceedings. Oklahoma law often requires the consolidation of these cases before a single judge. This is done to ensure consistency in rulings and for judicial efficiency, as the issues of domestic violence are highly relevant to the divorce.

The presence of a protective order can significantly influence the dynamics of a divorce in several ways:

• Property and Asset Division: The order may grant the petitioner exclusive possession of the marital home, forcing the other party to find alternative housing. This can create immediate logistical and financial challenges.
• Communication Breakdown: The no-contact provisions of a protective order can make direct communication and negotiation between the divorcing parties nearly impossible, often necessitating all communication to go through legal counsel, which can increase costs and prolong the process. Limitations on communication also impact co-parenting, meaning that the protective order petitioner may become the custodial parent by default, as the parents cannot communicate and exercise joint custody due to the protective order.
• A protective order finding is equivalent to a domestic violence finding, meaning that the defendant spouse may be required to pay all of the protective order petitioner spouse’s attorney fees incurred in the protective order and in the divorce case.

A protective order can have a devastating impact on a parent’s child custody and visitation rights. While a protective order hearing is not a formal custody hearing, its findings can create a significant legal hurdle for the person against whom the order is issued.

Under Oklahoma law, a finding of domestic abuse, which is often the basis for a protective order, creates a “rebuttable presumption” that it is not in the best interest of the child for the abusive parent to have custody. This means the burden of proof shifts to the accused parent to demonstrate to the court why they should have custody or unsupervised visitation.

Key impacts on child custody cases include:

• Temporary Suspension of Visitation: A protective order can, and often does, temporarily suspend or severely limit a parent’s contact with their children.
• Evidence in Custody Hearings: The allegations and findings from the protective order hearing can be introduced as evidence in the subsequent child custody case, painting a negative picture of the accused parent.
• Supervised Visitation: Even if visitation is allowed, the court may order that it be supervised by a third party, adding another layer of complexity and potential cost.
• Emergency Custody: While a child may be temporarily included in a protective order, the more appropriate legal avenue for long-term protection is an emergency custody order, a separate legal action that is often pursued in conjunction with a protective order.

Given the significant long-term consequences of a protective order, the importance of having legal representation cannot be overstated, whether you are seeking a protective order or defending against one.

For the person accused, an attorney can:

• Challenge the Allegations: Scrutinize the evidence presented and cross-examine witnesses to ensure the order is not based on false or exaggerated claims.
• Negotiate Terms: In some cases, it may be possible to negotiate the terms of the order to be less restrictive.
• Mitigate Long-Term Damage: Work to prevent the issuance of a final protective order, which can have lasting negative effects on your reputation, employment, and future legal proceedings.

For the person seeking protection, legal counsel can:

• Prepare the Case: Ensure all necessary information and evidence are presented effectively to the court.
• Guide You Through the Process: Advise you through the complexities of the court system during a stressful time.
• Advocate for Your Safety: Ensure the final protective order includes all necessary provisions to protect you and your children.

A protective order is far more than a simple “stay-away” order. It is a powerful legal instrument with the potential to trigger criminal charges and profoundly alter the outcomes of divorce and child custody cases. The significant stakes involved make knowledgeable legal counsel an indispensable asset for anyone involved in a protective order case.

The attorneys at Bundy Law have written, spoken, and taught other attorneys and judges about the relationship between protective orders and criminal cases and family law cases. Each attorney is a trained, experienced trial lawyer who has assisted victims of domestic violence who sought protective orders as well as defended the accused in protective order and criminal defense cases.