The Tennessee state legislature created orders of protection in order to “recognize the seriousness of domestic abuse as a crime and to assure that the law provides a victim of domestic abuse with enhanced protection from domestic abuse.” Tenn. Code Ann. § 36-3-618. This is obviously a good thing, and yet the order of protection is a legal tool that is – and I think many attorneys would agree with me – oftentimes abused. To borrow some stodgy, old-timey lawyer jargon, oftentimes the order of protection, which should be used as a shield to protect, is instead wielded as a sword to inflict harm.
That is certainly not to imply that every – or even, many – orders of protection are frivolous, or unwarranted. And to be exceedingly clear: every single person who has been the victim of domestic abuse, harassment, or stalking should absolutely have the full protection of the law, as there’s no place for those things in civil society. What I’d like to focus on in this blog is what a party pursuing an order of protection must prove in order to be successful. I think this is particularly meaningful, as many orders of protection I encounter as a Knoxville Tennessee based divorce and family law attorney, are somewhat fuzzy. What I mean by that is, the order of protection that is put in place against an individual who has also been charged with the criminal offense of domestic assault is generally not one where there’s a lot of wiggle room. Similarly, the completely fabricated order of protection which has absolutely no basis in reality whatsoever is, in my experience, a rarity (although, if you do believe this to be something that has occurred, there is relief available to you under the law, which I will likely discuss in a later blog post).
The orders of protection that remain are those where domestic strife – relationship problems, money problems, childcare issues, and combination of those things – have been building for some time, have come to a head, and while neither side tends to be entirely without fault, one side has probably taken things too far. So, what does the party seeking the order of protection need to prove? That’s relatively simple, that they have been the victim of “domestic abuse, stalking or sexual assault” and they must prove that “by a preponderance of the evidence”. Tenn. Code Ann. § 36-3-605. Further, with respect to domestic abuse or sexual assault, the individual will need to show that a domestic relationship exists between themselves and the person from whom they wish to be protected: family members, boyfriend/girlfriend, husband/wife, parents of the same child. Each of those terms have specific legal definitions which I won’t go into here, but I will spend some time with stalking, as it is the sole basis for an order of protection which 1) does not require a domestic relationship and 2) has an objective and subjective standard. What do I mean by #2? Simply that to succeed, an individual seeking an order of protection based on stalking must show that they have been harassed, within the meaning of that term as defined at Tenn. Code Ann. § 39-17-315. That statutory section requires the party seeking protection from the alleges stalking a) to have suffered emotional distress and b) for a reasonable person to have also suffered emotional distress.
If an order of protection is granted, it can remain in place for up to one year, and if it is violated in that time, it can be further extended within the court’s discretion. It is very easy to file for an order of protection, which is by design – the legislature doesn’t want it to be a difficult thing for victims of domestic abuse to seek protection. However, something that is important for anyone involved in an order of protection proceeding to understand is that writing out the narrative basis for an order of protection and filing, isn’t the end of the process. A judge will review that petition, decide whether there is a basis to grant a temporary order of protection without a hearing, and then set the petition for a hearing at a later date. I have seen many orders of protection get dismissed that probably should have remained in place because the person seeking protection didn’t show up for the hearing, and the individual responding to the petition did. Similarly, I’ve seen plenty of orders of protection that probably should not have been granted, be put in place because the individual who was served with the petition did not show up to defend themselves.
