Thursday, January 19, 2006

Letterman Case Shows Problems with Restraining Orders

This is the latest article by Glenn Sacks and Jeffery M. Leving

Letterman Case Shows Problems with Restraining Orders

Excerpts:

A Santa Fe, New Mexico judge recently granted a temporary restraining order against TV talk show host David Letterman for a woman who alleges that Letterman—who works in New York City and whom she has never met--has mentally harassed her through his TV broadcasts. According to Colleen Nestler, Letterman has caused her "mental cruelty" and "sleep deprivation" for over a decade, and has used code words and gestures during his broadcasts to show her that he wanted to marry her and train her as his co-host.

Beginning in the 1970s, restraining orders became a tool to help protect battered women. This is as it should be. However, in the rush to protect the abused, the rights of the accused are being violated on an arguably unprecedented scale. Many if not most domestic violence restraining orders are simply tactical maneuvers designed to gain advantage in high stakes family law proceedings. The Illinois Bar Journal calls the orders "part of the gamesmanship of divorce.”

A recent article in the Family Law News, the official publication of the State Bar of California Family Law Section, explains that the bar is concerned that "protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody.” The authors note that protective orders 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.”

Such orders are generally done ex parte, without the accused's knowledge and with no opportunity afforded for him to defend himself. When an order is issued, the man is booted out of his own home and can even be jailed if he tries to contact his own children. This helps women position themselves as their children’s sole caretakers, which aids them in winning sole (or de facto sole) custody of their children in their divorce settlements. In California and other states, the order itself can be considered a finding of domestic abuse, making the restrained person ineligible for joint custody.

Despite these grave effects, many courts grant restraining orders to practically any woman who applies. District Judge Daniel Sanchez, who issued the restraining order against Letterman, explained "If [applicants] make a proper pleading, then I grant it."

Restraining orders generally only limit the restrained person’s contact with the protected person but not vice versa. As a result, husbands who have reconciled with their wives are being arrested during routine traffic stops for being in the same car with them. In one case, a father was arrested and jailed for three days for breaching a domestic violence order by taking his son to the hospital. The mother had called the father, said their son had been injured in a bike accident, and asked him to take the boy to the hospital. The conviction stays on his record and hurts his job prospects but he can’t get it undone.

Some men have been arrested and jailed after being tricked into violating their restraining orders. In one Seattle case, a man was jailed for three months after returning phone calls from his ex-wife, who showed the police the phone screen with the man’s number on it. The man explained that when he received the messages he worried that something might have happened to his kids. He asks “what kind of parent would I be if I didn’t return those calls?”

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