Family Court usually makes for a better place for restraining family members
After 13 years of practice, and after participating in dozens of civil protection order cases, it has become clear that obtaining a civil protection order is not always the best method to protect you, or your children, from another who is menacing you. I have found that initial reporters, social workers, and even police officers are quick to recommend filing for a civil protection order, regardless of whether it’s the best course of action for an individual. Here are some things to consider before filing for a civil protection order:
Can you meet your burden? The legal burden for a temporary protection order (TPO) and a permanent protection order (PPO) are different, and you must eventually meet both standards. For a TPO, you must convince a judge that you are in imminent danger of death or severe bodily harm, or that you need protection from severe stalking or harassment.
This means you won’t get a TPO just because someone is bothering you; there must be intent to harm, intimidate, or coerce you. (See CRS 18-9-11 and CRS 18-3-602) That your boyfriend tossed a plate of food on a table that splattered on your child, or that your son’s wife repeatedly phones you about what a terrible person he is (both recent, real-life examples), don’t qualify for a protection order.
And to make a TPO permanent, you must show you will continue to be in danger without it.
What evidence do you have? Judges hate cases where the only evidence is two people telling different versions of what happened. You probably can obtain a TPO because you’re the only one providing the judge any information, and because TPOs are only good for two weeks.
But can you convince a judge to find in your favor when the other party presents a defense? You may want to hold off on filing for a TPO until you have photos, audio, video, witnesses, or other independent evidence to shore up your argument. Engaging the police or social services, who may generate a report favorable to you, is also a good idea to obtain the best evidence you can present at the eventual PPO hearing.
If you’re Keanu Reeves and need a protection order against a fan who just broke into your house and is swimming in your pool (true story), a standard protection order is a no brainer. But if it involves family members, family court likely is better.
County courts handle civil protection orders, and they are not equipped to handle the complexities that come from disputes regarding family members. County court judges can either grant or deny a protection order, and the consequences of that decision are usually rigid and limited, often getting in the way of visitation with children or of earning income.
If you’re married, or if you’re trying to protect your child from the other parent, family court is probably the better way to go. Family courts can limit the communications between parties and even order parties to stay away from each other, very similarly to what a PPO would do.
More than County Court, however, Family courts can appoint special investigators to delve in children’s issues. Family courts can apply several factors to determine what is best for any children involved. And a family court will balance the need of a spouse for protection against the need of a protected party to be able to earn an income and support the family.
Is a protection order just? PPOs have the ability to damage or destroy the careers of those in many professions -- law enforcement, military, those with security clearances, for example.
A PPO requires the defendant to relinquish his or her firearms. And a PPO can subject a person to criminal charges if there are allegations the PPO has been violated. Many people regret filing for a protection order after they realize the consequences of their actions, so you should be careful not to file for one simply because you are angry or upset.
This becomes an even bigger issue considering your consent to the protected party is not enough to protect him or her from punishment if he or she violates the order. [The affirmative defense of consent of the victim is not available to a defendant who is charged pursuant to § 18-6-803.5 (1)(a) with violating a protection order. A civil protection order is an order of the court and not an order issued by the protected person, and the protected person's consent cannot, asa matter of law, constitute a restrained party's defense to the crime for violation of a protection order. Hotsenpiller v. Morris, 2017 COA 95, -- P.3d --.]
Civil protection orders have their place in the legal landscape of laws designed to protect people and to keep the peace. But they’re not always the best measure of protection, they are not to be treated lightly, and they require the proper collection and presentation of evidence to make them stick.