I was recently interviewed for a story on the local news regarding the denial of a petition for protection from abuse. The denial made headlines because the person who petitioned for the protection order was murdered, along with her new husband and their roommate, by the subject of the petition 3 months later. I was not involved in this case and only know information through the news.
Let me be clear from the beginning: I do not blame the judge for these three deaths. What was not shown in the news clip, is that I was clear to place the blame on the person who pulled the trigger. I stated to the news reporter as I have to numerous clients over my 18 years as an attorney: a protection order, though wonderful to have, is merely a piece of paper that will not physically stop a fist, knife, or bullet. A person intent on killing another human will find a way to do so and will not be stopped by a piece of paper.
Having said that, I always encourage someone in an abusive situation to get a protection order. Protection orders are narrowly tailored restraining orders. They are narrowly tailored in the sense that they are only available when there are certain qualifying relationships, e.g. spouse, parent-child, intimate relationship, etc. Furthermore, they are available to persons within those qualifying relationships who are subject to abuse. The abuse can be physical (striking, punching, kicking, kidnapping), intimidation-based crimes (stalking, harassment), or property damage. What makes these protection orders effective in most cases is that a violation of the protection order is a crime for which the defendant can be jailed for a up to a year.
I can’t even guess the number of men and women I’ve counseled about domestic violence and the need for filing a protection order. My advice is always the same: if you have a reasonable fear for your safety or that of your children, file the petition. The reasonable fear must be based on something recent – within the last few weeks, not something that happened a year ago. This is an extraordinary remedy in that the petitioner is requesting the Court to initially grant an ex parte order – that means issuing an order without hearing from the other side first. Because this is basically an emergency petition telling the Court you need immediate protection, the precipitating event for filing the petition must have been recent. You are not precluded from referencing past abuses, but for purposes of the immediate protection afforded by the PFA, there must have been a recent act. I’ve had people describe abusive behavior and then say, “but I’m not scared of him.” If there truly really is no fear, then a PFA is not appropriate. However, when someone tells me that, I question them thoroughly to determine if there’s really no fear or if he or she is just conditioned to say there’s no fear.
When the petition is filed, the Judge can order temporary protection for the petitioner and children, award the victim the residence, order him or her to stay away from the residence and victim’s place of employment, order the use of the vehicle to the victim, and some other relief as well. The matter will then be set for a trial to determine if the temporary order with those protections should be made permanent. At the trial, the Defendant can be present with or without an attorney and will be able to cross-examine the victim and present his or her own evidence. It is extremely important for a victim to understand that he or she can have an attorney present on his/her behalf. Most places in Alabama (if not all) have access to free legal services for victims of domestic violence. Legal Services of Alabama (https://www.legalservicesalabama.org/) is a statewide organization that can provide an attorney to represent victims of domestic violence in a PFA. Furthermore, many domestic violence shelters and organizations across Alabama can assist a victim in finding a lawyer. (http://www.acadv.org/). There are also several Volunteer Lawyers Programs across the state that will provide free legal assistance to victims in a PFA hearing. (https://www.alabar.org/for-the-public/need-legal-help/) NO VICTIM OF DOMESTIC VIOLENCE SHOULD WALK INTO COURT ON A PFA WITHOUT A LAWYER!!
If you are a victim of domestic violence – GET OUT. Develop a safety plan. The most dangerous time for a victim of domestic violence is when he/she is leaving the relationship – that’s why it’s so incredibly important to develop a safety plan. There are some resources to develop a safety plan in the links provided in this blog. Talk to an attorney who understands domestic violence and can advise you on developing a safety plan and steps to take to protect yourself and your children. Talk to an attorney about obtaining a protection order – whether or not it’s the right thing for you. Don’t feel like you have to do this alone. There are resources and there are people who are willing and ready to help.
The news reporter asked me what was the saddest thing about this case. My reply was that there are now children who are orphaned and that they will grow up with the knowledge of what their father did to their mother and have to live with that. Children are often victims of domestic violence even when they are not physically assaulted. If you have no other motivation to get out of an abusive relationship – think about the effect the abuse has on the children.
Brighter and better days can be ahead. You do have hope and a future.
(no representation is made that the quality of legal services to be performed are greater than those performed by other lawyers)