This recent article by Marlene Moses and Manuel Benjamin Russ in the Tennessee Bar Journal may be of interest to readers of this blog.

Perfecting Protection

In Tennessee, a party may take protective action from another person short of filing a criminal warrant by requesting an Order of Protection from the appropriate jurisdictional authority. Despite the fact that an Order of Protection does not carry the immediate danger of incarceration or a criminal record, an Order of Protection is a powerful measure that gives the Court broad discretion in a number of areas that are of great concern to a family law practitioner in addition to its primary function of providing court ordered protection for one party from another. When and how should a family law attorney advise her/his client about an Order of Protection? The mechanics, details, and uses of an Order of Protection are discussed at greater length below.

The Tennessee General Assembly chose to include a clear statement of purpose for all of chapter 36, stressing that, in the past, domestic abuse had been treated differently by the authorities than other offenses and that this chapter was designed to give additional protection to victims that had been absent in years past.[1] With this declaration by the Legislature regarding the fundamental purpose of the section in mind, this article will review the procedure for and repercussions of getting an Order of Protection.

1. Why you can obtain an Order of Protection and what happens when you get one.

An Order of Protection may be obtained by a person as a means of protecting that individual from another who has engaged in various forms of inappropriate conduct. Each particular type of conduct that would permit a party to obtain an Order of Protection constitutes, by itself, a criminal offense, but an Order of Protection is strictly a civil measure. An Order of Protection may only be taken by the sworn petition of a victim of a domestic assault, stalking or sexual abuse pursuant to Tenn. Code Ann. Section 36-3-602.[2] If the victim happens to be a minor child at the time of the incident, then the guardian of the child may seek an Order of Protection on his/her behalf.[3] Often, though not always, a court will issue an Ex Parte Order of Protection when the initial petition is filed and the Ex Parte Order will remain in effect pending a hearing on the issues alleged in the petition, which must be docketed no more than 15 days after the petition is filed.[4] Once an Order of Protection has been granted, the respondent is then prohibited from contacting the petitioner by any means either directly or indirectly, in addition to ceasing the conduct that precipitated the filing of the petition.[5] Typically, an Order of Protection lasts no more than one year from the date that the petition is granted; however, a court may extend the protective order for additional one-year increments “on proper showing of cause” indefinitely.[6]

An additional issue that spawns from the issuance of an Order of Protection that often affects the respondent directly and permanently is federal and state restrictions on possession and use of firearms by the respondent. If an Order of Protection has been issued against a respondent, and the order is one that is described in 18 US 922(g)(8), then it is a federal offense for a respondent to own or possess a firearm or ammunition in interstate commerce.[7] It should be noted that the federal offense does require that the firearm and/or ammunition be part of interstate commerce and, though this is typically not a difficult requirement to meet, it is possible that possession of a firearm within the State of Tennessee does not run afoul of 18 US 922(g)(8). Consequently, in addition to this serious federal prohibition against the possession of firearms, the state has proscribed the possession of any firearms at all while a respondent has an Order of Protection entered against them.[8] A respondent must be given notice of the prohibition against firearms at the time the Order of Protection is entered against him/her.[9]

2. What happens if you violate an Order of Protection?

If there is a violation of the Court’s protective order, the he or she may either seek civil or criminal contempt against the respondent,[10] or the petitioner may seek a criminal warrant for the offense of Violation of an Order of Protection as a remedy for the violation.[11] A violation of an Order of Protection is now a misdemeanor in Tennessee and punishable by up to an 11 months and 29 days sentence.

If the petitioner chooses to file a petition for contempt, they may proceed on their own in the court that issued the Order of Protection. If the petitioner is seeking a criminal warrant, that must be pursued by the district attorney’s office for that jurisdiction. Criminal and civil liability including, but not limited to, jail time, a criminal record, monetary penalties and, potentially, the loss of other rights controlled by the court during the pendency of a divorce like visitation are all possible consequences for the violation of an Order of Protection.

3. What should a family law practitioner know about Orders of Protection?

For the family law practitioner, an Order of Protection provides the attorney with the chance to request from an issuing court many things that are of the utmost importance in a family law case. The court that issues an Order of Protection, in addition to restricting the respondent from contacting the petitioner, may address who has possession of the residence, who has custody of the minor children, how much support the respondent must pay to the petitioner, including child support, and even who should get the family pets.[12] In a case where there is either a pending divorce, or there will be one, or in a case where custody of a minor child between non-married parties will need to be resolved, this first chance to lay the groundwork for the court is critical. An Order of Protection might be the first time that a court has addressed any of these issues and, unlike a typical divorce action, the respondent to a petition for an Order of Protection will also need to defend himself/herself against the allegations in the petition in addition to advocating for their position of the above mentioned pertinent issues. Because of the nature of the petition, it is often in an unfavorable light that the court first views the respondent and, consequently, a petitioner has a great deal of leverage over the entire family case when a petition has been filed.

The public is becoming increasingly aware of the pervasiveness of domestic violence as well as other unwanted contact between intimate partners such as harassment and stalking. Orders of Protection, as noted in Tenn. Code Ann. § 36-3-618, have been created in an attempt to rectify prior, historical ignorance of these issues. If a family law practitioner is faced with a situation in which a client feels unsafe becauase of this type of conduct by his or her partner, the lawyer should do everything possible to assist in obtaining an Order of Protection. This would include bringing them to the magistrate or court issuing the Order, or filing the petition for them. Obviously, assistance of counsel at a hearing would be beneficial. As noted above, the issuance of an Order of Protection may give them a tactical advantage in the case as well and can be a good opportunity to address necessary issues in family law cases, like division of assets and child support, on terms and at a time that is favorable to the petitioner.

Given the advantage that a party with an Order of Protection in place enjoys, it is not hard to envision the misuse of an Order of Protection in a family law setting. It is not beyond the realm of possibility that a party to a divorce, or one that anticipates becoming a party to a divorce may file a petition for an Order of Protection on falsified though plausible grounds in order to gain substantial leverage in a pending or future lawsuit. Given the varied and critically important family law issues that come under the court’s control, pursuant to the enumerated and non-enumerated list in Tenn. Code Ann. § 36-3-606, a party can gain an ill-gotten but substantial upper hand through the filing of a false petition for an Order of Protection. If the petition is filed during the pendency of a divorce after counsel has been retained, counsel for the petitioner must exercise firm control over the process and be an impartial judge of the veracity of their client’s claims before assisting with filing a petition. A false claim, even one that is later repudiated, can do lasting damage to one or both of the parties in the divorce.

A family law practitioner must use sound judgment in determining whether interaction between the parties is merely bitterness arising from an emotional divorce, or if the conduct is truly something where a protective order is necessary for the intended purpose specified in Tenn. Code Ann. § 36-3-618. Additionally, costs may well be assessed against a party who has been determined to have filed a false order of protection.[13]

In some situations, parties who are participating in an ongoing petition for an Order of Protection may try to resolve the matter through the use of a mutual, agreed restraining order that prohibits both parties from unwarranted contact. Though this resolution seems to resolve the issue of protection and harassment for both parties, Tennessee appellate courts have noted that a trial court has no statutory authority to order a mutual restraining order in lieu of granting, or dismissing, a petition for an Order of Protection that has been litigated in its court.[14] Appellate courts have further noted that an agreed Order entered into by the parties, even with the approval of the trial court, does not trump or countermand an Order of Protection that has previously been granted.[15] If the parties wish to resolve their differences by an mutually agreed upon joint restraining order, it appears that the petitioner would have to dismiss any existing or pending Order of Protection before the agreed Order would have the desired effect and be endowed with the proper judicial authority over and above an Order of Protection. Consequently, family law practitioners should be wary of this method of attempting to resolve a pending or existing Order of Protection since the mere signing of an agreed restraining order may not, in fact, be a lawful order.

Orders of Protection are commonplace in Tennessee today and frequently arise in family law cases. A family law practitioner should be well versed in the proper, and improper, uses and protections provided by this legal tool the legislature has enacted in the effort to curb domestic abuse and violence.

Notes
1.  Tenn. Code Ann. § 36-3-618
2.  Tenn. Code Ann.§ 36-3-602(a)
3.  Tenn. Code Ann. § 36-3-602(b)
4.  Tenn. Code Ann. § 36-3-605(a)
5.  Tenn. Code Ann. § 36-3-606
6.  Tenn. Code Ann. § 36-3-605(b)
7.  18 US 922 (g)(8) states that it unlawful for a person to possess a firearm if that person has had a court order that they be restrained from “harassing, stalking, or threatening an intimate partner”that the person had notice and a chance to be heard, and that the court made a finding that the person presented a “credible threat” to their intimate partner, or if the court’s findings state that the person used, threatened or attempted physical force.
8.  Tenn. Code Ann. § 39-13-113(h)(1).
9.  Tenn. Code Ann. § 36-3-625.
10.  Tenn. Code Ann. § 36-3-610.
11.  Tenn. Code Ann. § 39-13-113(a)(1).
12.  Tenn. Code Ann. § 36-3-606.
13.  Jackson v. Lanphere, 2012 WL2244797 (Tenn.Ct.App. June 15, 2012).
14.  Carr v. Allen, 2011 WL 578752 (Tenn.Ct.App. Feb. 16, 2011).
15.  Wiser v. Wiser, 2011 WL 4729870 (Tenn.Ct.App. Oct. 7, 2011), stating that an agreed restraining order that was incorporated into the Marital Dissolution Agreement did not and could not vacate or modify the existing Order of Protection that had been granted during the pendency of the divorce.

Source: Perfecting Protection (Tennessee Bar Journal, May 2015).

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