Divorce, Protective Orders, and CHL

[Bullitt]

Okay, let me get this straight:

A wife files for a protective order in a civil court on make believe charges. She does this ex-parte filing and the husband isn't even there to defend himself but in another state finishing his military obligation. She sees this as a child custody tactic and then springs a surprise divorce on him.

He gets served with this protective order because the Sheriff offices around the country are tied into each other.

He then has to give up his guns? Where is the due process for him in all of this?

[gigag04]

Protective orders are criminal court issues usually and need proof of danger. Restraining orders are purely civil...are you sure it is protective?

[Bullitt]

Protective orders are criminal court issues usually and need proof of danger. Restraining orders are purely civil...are you sure it is protective?

In the state I am referring to it is a civil order taken out by a Petitioner, the wife. The order will then be served on the individual here in TX, known as the Respondent.

[brhalltx]

What state are you referring to?

[Bullitt]

What state are you referring to?

That's immaterial. It is a CIVIL protective order from that state served in Texas.

[jmra]

The court system is far from perfect. Like anything else involving people, it can be abused by those it is designed to protect. Get a good lawyer and pray for the best. The system may be screwed up, but there's not many in the world I'd trade it for.

[Bullitt]

The court system is far from perfect. Like anything else involving people, it can be abused by those it is designed to protect. Get a good lawyer and pray for the best. The system may be screwed up, but there's not many in the world I'd trade it for.

Nice words, but this is screwed up. There are all kinds of ramifications here without due process. First the order is one-sided, and judges will err on the side of safety for the Petitioner even if the Respondent did nothing. The Respondent isn't even in court when the Order is taken out. That's may be okay for some, but the order itself is viewed as a "crime" by many. Second, no crime is actually committed unless the respondent violates the order.

Therefore, since there has been no crime, why do these Orders show up in background checks and hence deny employment? Why are guns seized without due process? Why doesn't the Petitioner simply call the police when the incident happens and make it a real crime instead of civil a affair. Then when the Respondent does clear himself, the fact that an Order was taken out remains on his record. This makes no sense.

[jmra]

The court system is far from perfect. Like anything else involving people, it can be abused by those it is designed to protect. Get a good lawyer and pray for the best. The system may be screwed up, but there's not many in the world I'd trade it for.

Nice words, but this is screwed up. There are all kinds of ramifications here without due process. First the order is one-sided, and judges will err on the side of safety for the Petitioner even if the Respondent did nothing. The Respondent isn't even in court when the Order is taken out. That's may be okay for some, but the order itself is viewed as a "crime" by many. Second, no crime is actually committed unless the respondent violates the order.

Therefore, since there has been no crime, why do these Orders show up in background checks and hence deny employment? Why are guns seized without due process? Why doesn't the Petitioner simply call the police when the incident happens and make it a real crime instead of civil a affair. Then when the Respondent does clear himself, the fact that an Order was taken out remains on his record. This makes no sense.

It's not "nice words", it's reality. Does the system have issues? Yes. Can the system be manipulated and abused? Yes. Is this situation screwed up? Based on the information provided to us by an obviously biased party, yes. Is the system going to be fixed in time to affect this situation? No.
So, we come back to reality. Get a good lawyer and pray.

[Bullitt]

Based on the information provided to us by an obviously biased party, yes.

Actually not my case, nor even anybody related to me. But by the tone of your response "an obviously biased party" I can see you have taken a side already.

Thanks for the feedback.

[Keith B]

Based on the information provided to us by an obviously biased party, yes.

Actually not my case, nor even anybody related to me. But by the tone of your response "an obviously biased party" I can see you have taken a side already.

Thanks for the feedback.

OK, either discuss this civily or the topic will be locked. Personal attacks will not be tolerated.

[Keith B]

Okay, let me get this straight:

A wife files for a protective order in a civil court on make believe charges. She does this ex-parte filing and the husband isn't even there to defend himself but in another state finishing his military obligation. She sees this as a child custody tactic and then springs a surprise divorce on him.

He gets served with this protective order because the Sheriff offices around the country are tied into each other.

He then has to give up his guns? Where is the due process for him in all of this?

For out of state protective orders served in Texas the person MUST have been notified and provided the opportunity to go to court to respond to the charges. See this from http://www.womenslaw.org/laws_state_typ ... ntent-8976" onclick="window.open(this.href);return false;

Can I get my out-of-state protective order enforced in Texas? What are the requirements?

Yes. Your protection order can be enforced in Texas as long as:
It was issued to prevent violent or threatening acts, harassing behavior, sexual violence, or it was issued to prevent another person from coming near you or contacting you.*

The court that issued the order had jurisdiction over the people and case. (In other words, the court had the authority to hear the case.)

The abuser received notice of the order and had an opportunity to go to court to tell his/her side of the story. It doesn’t matter if he actually showed up in court; just that he had the opportunity to do so.

In the case of ex parte temporary and emergency orders, the abuser must receive notice and have an opportunity to go to court to tell his/her side of the story at a hearing that is scheduled within a "reasonable time" after the order is issued.**

* 18 U.S.C. § 2266(5)(A)
** 18 U.S.C. § 2265(a) & (b)

See the Federal code here http://www.law.cornell.edu/uscode/text/18/2265" onclick="window.open(this.href);return false;

The individual MUST be provided the opportunity to be able to defend himself in court. However, if they fail to show up, then the order can be issued and enforced.

If he is in the military then he may be able to get legal advice and potential representation from the JAG unit on fighting the order and enforcement.

[jmra]

Based on the information provided to us by an obviously biased party, yes.

Actually not my case, nor even anybody related to me. But by the tone of your response "an obviously biased party" I can see you have taken a side already.

Thanks for the feedback.

The "obvious biased" comment was not meant as an insult or to be derogatory. It was obvious that only one side of the story was being represented and that representation was supportive of that side. This is by definition bias.
I don't have a dog in the fight and am not taking sides. This is why I'm not willing to jump on a band wagon with the information provided.

[Bullitt]

For out of state protective orders served in Texas the person MUST have been notified and provided the opportunity to go to court to respond to the charges. See this from http://www.womenslaw.org/laws_state_typ" onclick="window.open(this.href);return false; ... ntent-8976

Keith B. That's a useful opinion in the link. In this case it appears that the ex-parte order would be meaningless in TX until the Respondent travels back to the issuing state to have "his day in court." This I think this is a good thing in that at least there is due process.

When the Respondent travels back to the issuing state, he generally has two options (1) accept the order with no admission of guilt and no finding of guilt, (2) fight it right there and either win or lose to have the order tossed.

[Keith B]

For out of state protective orders served in Texas the person MUST have been notified and provided the opportunity to go to court to respond to the charges. See this from http://www.womenslaw.org/laws_state_typ" onclick="window.open(this.href);return false; ... ntent-8976

Keith B. That's a useful opinion in the link. In this case it appears that the ex-parte order would be meaningless in TX until the Respondent travels back to the issuing state to have "his day in court." This I think this is a good thing in that at least there is due process.

When the Respondent travels back to the issuing state, he generally has two options (1) accept the order with no admission of guilt and no finding of guilt, (2) fight it right there and either win or lose to have the order tossed.

Actually, the ex-parte could be enforced if the individual did not go to court on the date and failed to appear. If the person could not make the court date due to military service, the judge might be more inclined to grant a postponement until such time as the individual could travel. A lot would depend on his military status and if the judge felt there was no potential of the person being a threat to the persons listed in the order.

[baldeagle]

Actually, the ex-parte could be enforced if the individual did not go to court on the date and failed to appear. If the person could not make the court date due to military service, the judge might be more inclined to grant a postponement until such time as the individual could travel. A lot would depend on his military status and if the judge felt there was no potential of the person being a threat to the persons listed in the order.

Then again, the judge might be equally inclined to think, He's military. He probably is dangerous. I'll grant the order. Depends on the judge.