Protection order against domestic violence

Even a casual search of the internet will reveal much about the misuse of temporary restraining orders (TRO) in divorce court. Judges tend to “err on the side of caution” when a claim of domestic violence is made and tend to issue more temporary protection orders than they reject (TPO). Given there are no consequences for making false reports then it should come as no surprise that filing for an order of protection for domestic violence or OPDV (as it is known in Nevada) is a common tactic for female litigants. Maybe she also gains some sort of sick satisfaction knowing that a deputy has served him the notice of a hearing for a protection order at his place of employment.

Why would a woman want an OPDV?

The most common reason is to obtain possession of the marital residence. After all, possession is 9/10ths of the law. If you read my post on temporary support orders  you can see that a judge can order a guy to pay all the bills on a house he does not live in for an indefinite period of time. Disrupting his ability to see his children also means it is more likely that she will be awarded physical custody of the children. There is also a presumption against awarding joint custody if domestic violence is a factor.  

The Law

In Nevada, the relevant law is NRS 33.018:

NRS 33.018  Acts which constitute domestic violence.

      1.  Domestic violence occurs when a person commits one of the following acts against or upon his spouse, former spouse, any other person to whom he is related by blood or marriage, a person with whom he is or was actually residing, a person with whom he has had or is having a dating relationship, a person with whom he has a child in common, the minor child of any of those persons, his minor child or any person who has been appointed the custodian or legal guardian for his minor child:

      (a) A battery.

      (b) An assault.

      (c) Compelling the other by force or threat of force to perform an act from which he has the right to refrain or to refrain from an act which he has the right to perform.

      (d) A sexual assault.

      (e) A knowing, purposeful or reckless course of conduct intended to harass the other. Such conduct may include, but is not limited to:

             (1) Stalking.

             (2) Arson.

             (3) Trespassing.

             (4) Larceny.

             (5) Destruction of private property.

             (6) Carrying a concealed weapon without a permit.

             (7) Injuring or killing an animal.

      (f) A false imprisonment.

      (g) Unlawful entry of the other’s residence, or forcible entry against the other’s will if there is a reasonably foreseeable risk of harm to the other from the entry.

 Note for the purposes of Item 33.018(e), harassment has been defined in NRS 200.571:

NRS 200.571  Harassment: Definition; penalties.

      1.  A person is guilty of harassment if:

      (a) Without lawful authority, the person knowingly threatens:

             (1) To cause bodily injury in the future to the person threatened or to any other person;

             (2) To cause physical damage to the property of another person;

             (3) To subject the person threatened or any other person to physical confinement or restraint; or

             (4) To do any act which is intended to substantially harm the person threatened or any other person with respect to his physical or mental health or safety; and

      (b) The person by words or conduct places the person receiving the threat in reasonable fear that the threat will be carried out.

 So basically, if you hurt someone or threaten to hurt someone via actions or words (so that they had a reasonable fear of the threat being carried out) then you are guilty of domestic violence.

If you are arrested by the police then the court may issue an emergency protection order without a formal hearing for up to one week. A temporary protection order requires a judge to hear testimony and evidence and can typically last for up to 30 days, while an extended protection order can last for up to 1 year after a full hearing.

In my case, my ex-wife made an application for a temporary protection order because I entered the house to grab some possessions (after the judge granted her sole possession). However, she did not show up to court to argue her case and the application was declined. After I spent a sleepless night preparing a defense (and representing myself without a lawyer)  it was obvious the court could not find in her favor. Why? Because there was no intent to harass when entering the house because harassment is defined as a threat of harm or damage. My intent was to collect property. (Did I mention she attacked me when I entered the house and told my son to get his gun and shoot me in the head? No? Oh, well. The court didn’t want to hear it either).

Naturally, any case will be strengthened if there is more evidence than he said/she said testimony. Medical records, police reports, a criminal record, and witnesses all strengthen a case.

Effect of Order

A temporary order can:

• Forbid further threats, harassment or injury to you or your minor child either directly or through a third party
• Order the abuser to stay out of your home
• Prohibit the abuser from entering your place of employment, school or other specified location
• Award you temporary legal custody of children
• Provide other relief the court considers necessary in an emergency situation
• Force the abuser to turn over all firearms to law enforcement personnel and prevent him from buying firearms

In addition to providing the same protections as a temporary order, an extended order may:

• Limit or prohibit the abuser’s communications with you and your children
• Award you custody of your children and force the abuser to pay child support
• Establish visitation arrangements and require supervision by a third party if necessary
• Order the abuser to make rental or mortgage payments on the home in which you are living
• Order the abuser to pay all or part of costs and fees incurred in obtaining the protection order

Final Observations

• Never physically assault or threaten your ex-spouse. We are opposed to any act of coercion by either sex. A good proportion of domestic violence is real, although the latest research by the Center for Disease Control indicates women are equally or more likely to initiate domestic violence.
• Although injury rates and police reports, are higher for women, men still sustain about 1/3 of the injuries.
• It is a fact that some women have been known to injure themselves so they can generate evidence of physical injury and a medical report.
• Consider digitally recording or making a video of all contact with your ex-spouse
• Try to only see your ex-spouse in the presence of your lawyer or a police escort or other credible witness (who can write a report or testify what happened)
• Keep a diary of all contacts with your ex-spouse