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Orders of Protection Are Important Tools - but They Can't Fix Everything

We live in a society where getting things done in the fastest and cheapest way possible is the goal. For instance, after a long day at work, who wouldn’t prefer a nice, juicy Big Mac that takes 5 minutes to pick up compared to a meal that would take an hour to two to prepare? Just thinking about it makes my mouth water. At any rate, while Big Macs are yummy (who doesn’t love that secret sauce), I think we can all agree that they aren’t the best for you and leave something to be desired. Using Orders of Protection to modify custody orders can do just that: if there is a prior custody order, using an Order of Protection to modify that order only puts a Band-Aid on the bigger issue of modifying custody and has other negative implications as well.

So what’s the deal with Orders of Protection?
Orders of Protection are a most excellent weapon in a litigant’s armory to protect one’s self and their children from abuse. They are free to file, time efficient (most hearings only last an hour), and a hearing is normally held within 30 days. Within an Order of Protection, a parent or guardian of a minor child can request an Order of Protection on their and their child’s behalf ex parte: meaning that the information that they allege gets to the judge without the other side being able to offer their take on the situation. If the Order of Protection is granted, the other side is prevented from talking to the person as well talking to their child if it was granted on the child’s behalf. Being granted an Order of Protection can modify a prior custody arrangement without having to go through the rigmarole of opening a new case, which includes filing fees ($50.00 for opening an old case in most jurisdictions if there is a prior custody order; $165.00 if there is no prior order), going through discovery, and having to spend countless hours listening to your child’s other parent accuse you of who knows what. It also is less costly than having to hire an attorney, which is strongly encouraged if not required for modifications of custody. Orders of Protection seem to have it all, right?
There are numerous drawbacks in taking this approach to modifying a custody order. After talking with quite a few judges on their take of Orders of Protection being filed after the entry of a custody arrangement, I’ve determined one thing…it’s that Judges are tired of Orders of Protection being used as a quick and easy way to modify custody. Granted, Orders of Protection are for the most part warranted. But the fact of the matter is that Order of Protection proceedings are NOT the appropriate venue to modify child custody arrangements. Orders of Protection do not afford the parties discovery and the necessary evidence to support a modification of child custody. In addition, it’s hard to determine in just an hour whether it is in the child’s best interest to be placed in the sole custody of the moving party. Equate it with watching one television show in the middle of the season to understand what’s happened the entire time the show has existed. It’s just not possible.

When should I file an Order of Protection on my child’s behalf, then?
If you are scared for your safety and that of your child, then certainly file an Order of Protection. If there is imminent fear that the other parent of your child is going to cause bodily harm to your child, then an Order of Protection is absolutely necessary (in fact, stop reading this and go file one now if this situation applies to you). However, if there is a prior custody order and you have suspicions that your child’s other parent is doing drugs, drinking and driving, and/or having someone of the opposite sex who they are romantically involved with stay the night, you are better off and encouraged to file either a) a modification of child custody or b) an ex parte request for a modification of custody. While these might be much more time consuming and potentially cost more, your judge will thank you, give you much more credibility in court, and you won’t have the other parent throwing up the fact that you filed a needless Order of Protection in court. In addition, filing a modification of child custody will allow you discovery and can provide that an Attorney ad litem (just a fancy word for attorney for the child) be appointed for your child so their interests can be represented. Now who wouldn’t want that? After all, these proceedings are supposed to be about the children and not about getting back at the other parent

So what have we learned?
We’ve learned that while Big Macs are delicious and that I’ll probably get one after work today, they aren’t always appropriate and sometimes neither are Orders of Protection. Sometimes you gotta put in that hour to fix a decent meal that is balanced and eat your broccoli, much like you sometimes just have to go through the process of modifying custody. It all pays off in the end.

Key words: order of protection, domestic violence, child custody, custody order

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