Posted by: koherston | January 20, 2011

Cardwell v. Hutchinson

Facts: Petitioner is mentally disabled and was sexually abused by Respondent, who was the youth leader at Petitioner’s church. Petitioner obtained an order of protection prohibiting Respondent from from contacting Petitioner.  The order also prohibited Respondent from attending Petitioner’s church so long as Petitioner continued to attend that church. The order expired after one year, whereupon the parties extended it for another year.  After the expiration of the second year, Petitioner sought another one-year extension, which extension was opposed by Respondent. The trial court granted the extension.  Respondent appealed arguing Petitioner was required to prove she was in immediate danger of harm before the order of protection could be extended. Respondent argued that there was no such proof and, therefore, the trial court erred when it extended the order of protection for another one year period.

The Court of Appeals affirmed.

The party seeking a[n] . . . extension only needs to prove “the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence.”

Petitioner proved sexual assault by a preponderance of the evidence, necessitating the entry of the original order of protection. The proof further establishes that there is a likelihood that Petitioner will suffer significant harm if the order of protection is not extended. Due to Petitioner’s disability, she is much more vulnerable than other people her age. Not extending the order of protection likely will result in Petitioner never returning to her church out of fear that Respondent will be present at that church. Petitioner will be afraid of running into Respondent whenever she is out in public, including at her church home. Not continuing the order of protection would have the unintended effect of placing Petitioner under house arrest because she would be too afraid to leave her house and effectively would prevent her from attending her own church. Such a result is untenable and inconsistent with the stated purpose of the order of protection statute which is intended to protect the victim.

Query: Does this mean an Order of Protection can be extended in one-year increments indefinitely?  If the standard for extension is the fact that one satisfied the burden of proof to obtain Order of Protection in the first place, what is the purpose of limiting its duration to one year?

Cardwell v. Hutchinson (Tennessee Court of Appeals, Nov. 24, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.


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