NJ Court Ruling Correctly Tightens Rules on Restraining Orders

By Michael McCormick and Glenn Sacks

The recent South Jersey Courier–Post editorial “Don’t raise legal bar for restraining orders” (7/14/08) criticizes a new New Jersey court ruling which raises the evidence standard for domestic violence restraining orders. The editorial says the ruling, in concerning itself with “abusers’ rights,” could “drag the state back into the caveman era.” The Courier–Post is correct to be concerned about protecting abused women, but misunderstands the restraining order issue.

Under current law, it is very easy for a woman (or sometimes a man) to allege domestic violence and get a restraining order. The order boots the man out of his own home and prohibits him from contacting his own children. The standard is “preponderance of the evidence” (often conceptualized as 51%–49%), and judges almost always side with the accusing plaintiff. The new decision declares the current standard unconstitutional and requires the stricter “clear and convincing evidence.”

The Courier–Post says the problem “usually isn’t that women are falsely accusing men.” Yet much evidence suggests that this is exactly what is happening. For example, the Family Law News, the official publication of the State Bar of California Family Law Section, recently explained:

“Protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody…[they are] almost routinely issued by the court in family law proceedings even when there is relatively meager evidence and usually without notice to the restrained person….it is troubling that they appear to be sought more and more frequently for retaliation and litigation purposes.”

An article in the November, 2007 issue of the Illinois Bar Journal explains:

“If a parent is willing to abuse the system, it is unlikely the trial court could discover (his or her) improper motives in an Order of Protection hearing.”

These orders have become so commonplace that the Illinois Bar Journal calls them “part of the gamesmanship of divorce.”

The orders are ludicrously easy to get. For example, in 2006 a New Mexico woman even got one against TV host David Letterman. She claimed he was inflicting “mental cruelty” and “sleep deprivation” on her–via his TV broadcasts from 3,000 miles away! Typifying many, the Letterman judge explained, “If [applicants] make a proper pleading, then I grant it.”

The Courier–Post says that under Schultz’s ruling, a woman “could be killed by her abuser” before she meets the evidence standard for a restraining order. Yet restraining orders are only enforceable against law–abiding men. A violent spouse intent on killing his ex is not going to decide against it for fear of violating a restraining order.

New Jersey issues 30,000 restraining orders annually, and men are targeted in 4/5ths of them. They have become a weapon used for advantage in divorce, helping women position themselves as their children’s sole caretakers, which aids them in winning sole custody of their children. The orders effectively give women the right to banish men from their homes and their children whenever they see fit. It is entirely appropriate that New Jersey require substantive evidence before granting them.

  • South Jersey Courier-Post