Facts: During the pendency of the parties’ divorce action, Father obtained an ex parte order of protection against Mother, which ex parte order of protection was subsequently allowed to expire. The parties eventually entered an agreed parenting plan providing for equal co-parenting time.

Five years later, Father obtained another ex parte order of protection against Mother. On the day Father’s ex parte order of protection was scheduled for hearing, the parties entered an agreed one-year order of protection without conducting a hearing. The order of protection placed limitations on Mother’s contact with the children. The order of protection specifically noted no hearing had been held, no testimony had been offered and, therefore, the trial court had made no findings of fact.

The parties subsequently entered an agreed parenting plan that incorporated the limitations on Mother’s contact with the children imposed by the one-year order of protection. After finding Father had “shown good cause” to extend the order of protection “by a preponderance of the evidence,” trial court also granted Father a one-year extension of the order of protection.

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

Mother argued the trial court erred in finding sufficient basis to grant an extension of the order of protection.

Tennessee Code § 36-3-605 (2014) provides in pertinent part:

(a) Upon the filing of a petition under this part, the courts may immediately, for good cause shown, issue an ex parte order of protection. An immediate and present danger of abuse to the petitioner shall constitute good cause for purposes of this section.
(b) Within fifteen (15) days of service of such order on the respondent under this part, a hearing shall be held, at which time the court shall either dissolve any ex parte order that has been issued, or shall, if the petitioner has proved the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence, extend the order of protection for a definite period of time, not to exceed one (1) year, unless a further hearing on the continuation of such order is requested by the respondent or the petitioner; in which case, on proper showing of cause, such order may be continued for a further definite period of one (1) year, after which time a further hearing must be held for any subsequent one-year period….

“Abuse” is defined by Tennessee Code § 36-3-601(1), in relevant part, as “inflicting, or attempting to inflict, physical injury on an adult or minor by other than accidental means, placing an adult or minor in fear of physical harm, physical restraint, malicious damage to the personal property of the abused party….”

“Domestic abuse” is defined in Tennessee Code §§ 36-3-601(4), (5)(A) & (5)(D) as committing abuse against a “domestic abuse victim,” the definition of which includes a “former spouse” and “adults or minors related by blood or adoption.”

In other words, a party seeking entry of an ex parte order of protection must first show an “immediate and present danger of abuse.”

A party seeking a modification or extension of an existing order of protection, which is the case here, has a less onerous burden of proof and only needs to prove the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence.

Thus, to obtain the modification or extension of the order of protection at issue, Father had the burden of proving by a preponderance of the evidence the allegation of domestic abuse.

After reviewing the record, the Court of Appeals concluded:

Father [] was unable to offer specific details regarding any occurrence during the year the order of protection was in effect that caused him to fear for his safety or that of his children if the order were not extended…. Upon a careful and thorough review of the record, we determine that much of the proof presented by the parties focused on post-divorce issues rather than allegations of domestic abuse associated with an extension of the order of protection. We conclude that the evidence does not preponderate in favor of the trial court’s finding that Father met the statutory requisite for an extension of the order of protection. We therefore vacate the extension.

Accordingly, the trial court’s extension of the order of protection was reversed.

Hall v. Hall (Tennessee Court of Appeals, Eastern Section, date).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.