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  1. #1
    Join Date
    Jul 2010
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    VIrginia
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    Question Should a Different Judge Hear a Challenge to a Preliminary Protection Order

    My question involves restraining orders in the State of: Virginia,

    I was served a preliminary protection order ,two months into a divorce, that was issued by a judge using ex-parte with my X and her lawyer. The "incident" Occurred on a Saturday Night, she waited until the next day to call police, there was no report issued, only a log that they stopped by to check on caller. She left the house and took kids. On the following Wednesday her lawyer and her got a PPO from the judge and had me thrown out of the house. Her affidavit said I did nothing, but she was in fear of her life". (I'm not kidding)

    Now a hearing was scheduled in three weeks. The judge who issued the order held the order so she would be the one to hear it in court. I and my dumb lawyer did not understand the consequences of that. No judge is going to say, "I'm sorry for throwing you out of the house, my mistake, my bad." So even though everything we proved was true, the judge dropped the order between me and my kids, minors, and held it in place between me and the X. I appealed and with an even harder less lenient judge it was dropped immediately.

    The question is were my rights for an impartial hearing denied because the judge held the order for her review?

  2. #2

    Default Re: Preliminary Protection Order (New Twist)

    Not at all. This is typically the way ROs work: a petitioner comes to the court and says they are afraid, and asks the court to issue a TEMPORARY order. These are quick and easy to get issued because the court, until it can get a grasp on what's happening, often errs on the side of caution. Then, later, the court asks to hear from BOTH sides - and at THAT point determines if the order should stand or if it shouldn't. Perfectly reasonable for the judge who issued the temp order to also want to hear the case for whether the order should extend or not.

  3. #3
    Join Date
    Jul 2010
    Location
    VIrginia
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    Smile Re: Should a Different Judge Hear a Challenge to a Preliminary Protection Order

    Thank you for replying.

    So you believe that the judge hearing both parties would say the RO would not be extended and dismiss it. This judge was the one who put it in place on ex parte.

    Would this be the judge admitting they were wrong in the first place? Would this go against the judge as an error when his evaluation comes up?

    Several years ago I would have said it was ok, and I agree. Now I just see problems after being in court 25 times on divorce.


    Thanks

  4. #4

    Default Re: Should a Different Judge Hear a Challenge to a Preliminary Protection Order

    No, it's not admitting they were wrong in the first place. The first order was put in place as a way of being better safe than sorry. The judge only has ONE side of the story to go on at that moment. In cases where fear of domestic violence is in play, judges issue the temp orders like candy exactly because they know that they are only temporary until BOTH sides get to tell their side.

    This is exactly how it is DESIGNED to work.

  5. #5
    Join Date
    Jul 2010
    Location
    VIrginia
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    Default Re: Should a Different Judge Hear a Challenge to a Preliminary Protection Order

    I understand. It is promoting first one to the judge wins. No repercussions, just throw them out, and create a mess. Does not matter that there is no police report, does not matter that she already was out of the house. Does not matter that the Pendente de lite would be heard in two weeks. Does not matter the lawyers were already assigned and I could be summoned via a single call. Does not matter this was three days after the "incident". Didn;t matter that the affidavit said I did nothing, didn't threaten, no violence, never anything in 20 years of marriage, never in trouble no record not even a speeding ticket. All that mattered was an attorney that was willing to get in front of a judge and argue it.

    I think the lawyer should be held responsible.

    Thank you for your input.

  6. #6

    Default Re: Should a Different Judge Hear a Challenge to a Preliminary Protection Order

    It didn't even take an attorney. If she had one, she was one of the few, but she absolutely could have gotten a TEMP order without one. Because the order is temporary when first issued, the court system doesn't deem it to be overly problematic (even though you know that it obviously IS problematic to be tossed out of your house) in the big picture. Some judges are more relaxed about issuing...others more strict. Judges are like a box of chocolates...you never know what you're gonna get.

    Yes, typically the first one to tell the court that they are in fear, and have SOMETHING to back that up, like having called the police, will be the one getting the order granted. All other things being equal, most judges give more credibility to a woman being afraid of a man than a man being afraid of a woman, unless he's in a wheelchair, he's a midget, she's a martial arts expert, has some documented history of physical attacks against him, or some other significant "sway" in the anthropologically based stereotype of men being stronger and more aggressive than women.

    And in the big picture, until the number of people killed by their significant others, particularly right after a split, decreases DRASTICALLY, that's not going to change. The courts don't issue these because they have nothing better to do - they do so because of the OVERWHELMING data, collected over DECADES, that shows that during, and for a period of several months after, a breakup/divorce is statistically when some 85 to 90% of domestic violence related homicides occur. Of those, an overwhelming number are committed by men against women (whereas very FEW men are killed by their wives/ex's in a violent manner in conjunction with a breakup - women tend to kill with poison, for financial and not emotional motive, while still IN a relationship, or to hire someone to kill FOR them). So yes, a woman has a HUGE advantage in going to court, saying she's afraid, creating a REASONABLE claim of fear (if you're bigger than her, that's enough), and getting that order in place. No one's saying it's not a flawed system, but it IS the system we HAVE. And until your fellow men stop creating the stats that lead to these attempts to PREVENT deadly violence, it's not going to change.

    With that said, it's entirely possible that if you had gone to court FIRST, and could articulate some reason why you were in fear of her, it could just as easily have been HER out on her bum until the hearing. What you're missing here is that the process isn't a trial - there doesn't need to be "proof" beyond a reasonable doubt (the standard for a criminal conviction), or even the lower standard of doubt as in a civil case - it only needs to be enough to convince a judge that it isn't unreasonable to apply the order. AND, just like it's not a trial, the penalties aren't at that level either...unlike a criminal case, even a "bad" outcome for you doesn't include being incarcerated (like a criminal charge does), nor does it come with the "bad" outcome from a civil case of having judgements entered against you. What it DOES come with is SOME restrictions - restriction that the courts have found are not SO restrictive that they are willing to allow you to endure in order to increase safety for the petitioner when the judge determines that such safety might be at risk.

    At the end of the day, yes, I actually DO agree with you...these things can and DO get issued when there isn't REALLY a reasonable fear. But like with ANY system devised by human beings, there are and always will be, flaws. I certainly wouldn't want to be a judge sitting to hear and decide on these orders...judges are only human, and can only weigh input....they don't have magic powers to KNOW who is right or wrong or lying or not....but I DO know that I'd be inclined to issue orders rather than not - because I don't want to be the one who DIDN'T issue one, then have to explain it to the press, the family, and my conscience when the petitioner turned up dead.

    I ALSO agree with you that divorce attorneys have grasped onto this process as a tool with which to impress their clients that they got a "quick victory" by getting the ex out of the house easy peasy Japaneesee. For many it isn't a question of right or wrong, or even being ethical...it's about results. On the other hand, even the attorney can only know what they are told, just like the judge. There's no way to tell whether your wife snowed the attorney and the attorney acted honorably based on what they were told, or, if as part of the divorce strategy, the attorney, not knowing or caring whether the order was appropriate, pursued it anyway and mis-used an important tool meant for protection, not advancement of an individual's cause. Finally, there's no way for US (or you, or anyone else) to know whether your wife, in her own mind, was ACTUALLY ever afraid or not. Even serial killers successfully kill for many years without a traffic ticket, holding down a job, no prior history or problems....so "never been in trouble before" isn't nearly reliable as one might hope.

  7. #7
    Join Date
    Jul 2010
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    VIrginia
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    Default Re: Should a Different Judge Hear a Challenge to a Preliminary Protection Order

    You are absolutely correct, if an error occurs, I'd rather it be on the cautious side. I do believe that if a judge issues a RO then they should have all facts like why didn't a majistrate (?) issue this? Why is an divorce attorney doing this directly? What does the police report indicate? If a divorce is in progress where is the other lawyer? Has she left the house and where is she staying?

    Ex parte should not be taken lightly by anyone. It is being used improperly and only benefitting the lawyers.


    Now here is the rest of the story, fast forward two years. The divorce is final after 25 times in court of which only the X came to 7. The X gets a DWI, I find out since she has no car and her parents are taking her to work. Magically a new car shows up on day 8. I ask the kids about the old car and get the "you have to ask mom" response. I decide to check the pay fine website and find a DWI issued to the X. Thank goodness I had the kids that weekend.

    I inform the GAL and since we cannot get any information, the GAL tells me I should go to court and find out what is going on.

    I go to the court house on her court date and I get stopped by a Deputy telling me that I cannot enter the building, that a protective order is on me and if I go in I will be arrested. I got his name and badge and asked hiom to check this out and their is no RO. She had to admit that there is no protective order. Deputy comes out and I go inside. Her case is continued for 4 weeks. after the hearing she goes to JDR and files a show cause failure to comply with protective order against me.


    Summons comes 14 days later. A week later I issue a subpeona for the GAL and the deputy, i also issue a subpeona deces tecum for phone records. She talked to her divorce attorney who knows there is no RO.

    A week later I motion for a dismissal to be heard on the same day.

    A week later I get a call from the clerks court telling me that the case is dismissed and I do not have to appear on the court date. I ask for a judges signature or the process by which they are dismissing the case without it being heard. The answer I got was it is dismissed and I could come to court that day but I would be the only one there.

    Today I find out that the clerk's office is going to go in front of a judge one day before the court appearance and get a judges signoff. If I had not called I would not have known about this. This seems very odd that they would wait until the day before the court case to dismiss the case. What if the judge says he wants to hear this? All three of my subpeonas not been issued. So if they don't do this or fail then I am stuck with no ability to defend myself.

    Tell me what now?

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