Eagle Forum Legislative Alerts

Thursday, July 29, 2010

The 'Gamesmanship' of Restraining Orders

One of the big problems with family courts is that judges issue restraining orders virtually for the asking, without any evidence of actual domestic violence or even threat of violence. The Illinois Bar Journal explained that women use these restraining orders as a tool for the mother to get child custody and to bar the father from visitation. The Journal proclaimed that these restraining orders have "become part of the gamesmanship of divorce.” The “game” is that mothers can assert falsehoods or trivial complaints against the father without presenting any evidence, and easily get a restraining order.

The Fourth Amendment guarantees U.S. citizens the right to be "secure in their persons, house, papers, and effects." But each year, restraining orders are issued against at least two million men without proof or even evidence, forcing innocent men out of their homes. Real domestic violence is actually easier to prove than most crimes because medical record and forensic evidence is clear and convincing, and a restraining order may be appropriate. However, it is difficult to disprove false allegations of non-serious domestic violence, so a higher standard of proof is essential in order to sift fact from fiction.

Family courts have avoided facing up to whether these restraining orders issued against fathers are constitutional. Accused criminals enjoy a long list of constitutional rights, but feminists have persuaded judges to issue orders that restrain the actions of people who are not criminals but are mostly husbands and fathers, and punish them based on flimsy, unproved accusations. Most states do not require any standard of proof such as clear and convincing evidence. Even though these restraining orders are issued without the due process required for criminal prosecutions, they carry the threat of a prison sentence for anyone who violates them.

Probably two million restraining orders are issued every year in domestic relationships. There is no evidence that they increase the overall safety of the women or their children.

Listen to this commentary:

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