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
A person who claims they are a victim must show that they have some sort of relationship with their abuser. Protective orders are only for family members or romantic partners, with one exception: 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.
It is illegal under federal law for someone who is subject to a protective order (the defendant) to possess any firearm or ammunition.
There is a strong relationship between protective orders and divorce and child custody cases.
One of the 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.
This means if you have a protective order against you, the other side already has an advantage in a divorce and child custody case. If someone has a protective order and you have children with someone else, the protective order can still impact your other cases because of the crossover in the statutes. In protective order cases involving minor children, many times the person filing the protective order will also file a request for emergency custody.
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 anyone files a protective order against you, 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 a protective 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.
Protective orders are easy to obtain. Filing a protective order 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 protective order 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.
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.