Oklahoma Protective Orders Generally Have A Relationship Requirement
A person who claims they are a victim must show that they have some sort of relationship with their abuser. Protective orders are generally only for family members or romantic partners, with two exceptions: 1. victims of rape, and 2. victims of stalking may seek a protective order with no relationship requirement if they can prove that they made a complaint with law enforcement about the stalking before filing a protective order petition.
Only certain people can request a protective order:
- A victim of domestic abuse
- A victim of stalking
- A victim of harassment
- A victim of rape
- Adult family members on behalf of minor or incompetent victims
- Minor victims aged 16 or 17
Protective Orders Can Impact Divorce and Child Custody Cases
One of Oklahoma's protective order statutes, Okla. Stat. tit. 22 § 60.2(A) says,
A victim of domestic abuse, a victim of stalking, a victim of harassment, a victim of rape, any adult or emancipated minor household member on behalf of any other family or household member who is a minor or incompetent, or any minor age sixteen (16) or seventeen (17) years may seek relief under the provisions of the Protection from Domestic Abuse Act.
One of the child custody statutes, Okla. Stat. tit. 43 § 109(I)(1) says,
In every proceeding in which there is a dispute as to the custody of a minor child, a determination by the court that domestic violence, stalking, or harassment has occurred raises a rebuttable presumption that sole custody, joint legal or physical custody, or any shared parenting plan with the perpetrator of domestic violence, harassing or stalking behavior is detrimental and not in the best interest of the child, and it is in the best interest of the child to reside with the parent who is not a perpetrator of domestic violence, harassing or stalking behavior.
A divorce statute, Okla. Stat. tit. 43 § 112.6 says,
In a dissolution of marriage or separate maintenance or custody proceeding, a victim of domestic violence or stalking shall be entitled to reasonable attorney fees and costs after the filing of a petition, upon application and a showing by a preponderance of evidence that the party is currently being stalked or has been stalked or is the victim of domestic abuse. The court shall order that the attorney fees and costs of the victimized party for the proceeding be substantially paid for by the abusing party prior to and after the entry of a final order.
You can see that similar language is used in all three statutes. This means if someone has a protective order against you, the other side already has an advantage in a divorce and child custody case. Even if the person against you in the protective order case is not the other parent in your custody case, the protective order can still impact your other child custody case because of the crossover language in the statutes.
Protective Orders Carry Serious Consequences
Domestic violence, stalking and rape are all separate crimes. If someone files a protective order, they are accusing the other side of criminal activity. If you are the accused, you need a lawyer who can help you fully assess your situation and advise you about your rights for the protective order, for your family law case, and for any criminal investigation or charges.
A protective order can impact employment. A job that requires a background check or security clearance may be in jeopardy as soon as an order is issued. Other professions, such as licensed mental health professionals, attorneys, law enforcement, firefighters, and doctors, may inititiate a disciplinary investigation once a protective order is issued.
It is illegal under federal law for the defendant to possess any firearm or ammunition while the order is in effect.
In cases involving minor children where the opposing party is a parent, many times the person filing the protective order will also file a request for emergency custody. This means you may be fighting the allegations on several different fronts: criminal investigation or charges, DHS investigation, protective order court, family court, and in extreme cases juvenile deprived court.
You Need a Trial Lawyer If You Are Involved in a Protective Order
Protective orders are fairly easy to obtain initially. Filing the petition is one of the few times that one side can talk to the judge without giving the other side notice. Once a protective order is issued, you can be kicked out of your house and prohibited from seeing your kids for weeks or even months. Then, when you go to the hearing, even if you win and the case is dismissed, it is very difficult (almost impossible) to obtain attorney fees from the other side. Because protective orders are so easy to get and there are little consequences for filing a false or exaggerated claim, it is common practice for people to seek protective orders to obtain an advantage in their divorce or custody case. It is illegal to file a protective order simply to leverage a divorce or custody case, but proving that was the reason can be very difficult.
Because protective orders are so easy to obtain, sometimes people who need protection have a false sense of security when the case is set for trial. However, petitioners need trial attorneys too. The rules of evidence will apply at the hearing, even though they did not apply when the petition was filed. If the defendant shows up with an attorney, their attorney can make it very difficult for the case to be proven because of the rules about evidence and hearsay. A trial attorney knows how to set up facts and evidence to be properly admitted for the judge to consider before making the final ruling. We have helped parents obtain protection for their children against their former spouse's new partner even when the former spouse was uncooperative. We have helped protect minor children, and we have even helped a family find protection from a neighbor who was bothering them.
Protective orders involve an intersection of family law and criminal law. Even though protective orders involve allegations of criminal conduct, each side to a protective order is allowed to conduct discovery unlike most criminal cases. Because we try family law and criminal defense cases, we are able to help people who need protective orders obtain the relief they need, and we are able to successfully defend against protective orders that should not have been brought.