Family Law Forum on LinkedIn
Discussion & Survey
Raised by Erik K. Johnson, Principal at Utah Family Law, LC, Greater Salt Lake City Area
Question: What percent of protective orders (orders of protection, whatever your jurisdiction calls them) in domestic relations cases do you believe are sought fraudulently and/or for self-serving purposes?
- More than 75% (20%)
- More than 50% (10%)
- Less than 33% (10%)
- Less than 25% (60%)
In Israel, where I served as a Judge of the Family Court and dealt with hundreds – maybe more – of applications for protective orders over a period of 17 years, my impression is that far less than 25% of the applications were totally without merit.
But the Family Courts Law of 1995 provides for two important institutions which help families, including where an application for a protective order is filed.
The first is a Support Unit, staffed by experienced social workers and with access to a psychologist and a psychiatrist, and attached to the Court – usually with offices in the same building. This means that a Judge who receives the application, and thinks the application is incomplete or unconvincing on paper, can call in a social worker to speak to the applicant before the application is heard ex parte, and obtain more information. Also, if an order is made ex parte, the Court must conduct an inter partes hearing within 7 days, and I used to refer the parties in all such cases to the support unit, where in more than 50% of cases the parties reached agreement.
The second institution is One Family One Judge. Where any case is filed it is referred to a specific Judge, and any new applications or claims are filed by the same paries or one of them, they are allocated to the same Judge, who thereby acquires detailed knowledge of the parties, the problems in the family, and the personality of the family members involved.
So it is important to distinguish between a protective order application which is the first action brought before the Court, and an application made when there are other proceedings pending. In a first time case, the Judge relies on the application and the applicant – and the support unit if they are involved; and, of course, on his experience and instinct. But there is an important point that must not be ignored: whether or not the application is well founded, a first application indicates that the family, including children, is in distress, and early involvement of a social worker can help to identify the causes of the distress and refer the parties to treatment and/or Dispute Resolution services.
Where an application is made where there are other cases pending, or even after previous cases have ended, because even in such cases the new case goes to the same judge, it is usually easier to weed out the unjustified applications, since the judge can assess, on the basis of his knowledge of the parties, what are likely to be the ramifications of a protective order for other pending cases and the reasons for the application and its timing.
I hope this is helpful
Eric K. Johnson:
Philip Marcus’s comments are indeed helpful. Thank you so much for sharing your experiences in the jurisdiction of Israel. What a unique perspective.
Philip’s comments underscore the point: protective orders themselves are not (and never have been) the real problem. The problem is how ludicrously easy it has become to get a protective order regardless of MERIT. Jurisdictions with procedures for screening, and which do more than give lip service to those procedures will surely have fewer fraudulently sought and even fewer fraudulently granted protective orders. Would anyone disagree?