3516 E. Evans Dr,
Phoenix, AZ 85032
(480) 415-2824 [email protected]
Please consider my comment in support of the proposed amendment, and suggestions regarding additional changes.
First, I would like to thank the Honorable Judge Million and the members of the Committee on the Impact of Domestic Violence and the Courts for a well organized, purposeful, and necessary restructuring of the Arizona Rules of Protective Order Procedure. As I review the proposed amendments, there are two areas I would like to see language strengthened to protect parties from an abusive practice of false allegations and inappropriate requests (and potential issuance) for Orders of Protection that I will casually refer to as "firing the first shot". This occurs in what are generally high conflict dissolution and custody cases, and something I think has been an unintended consequence of the Court for a long time that results in an all too familiar story where Orders of Protection promote interference in parent-child relationships.
This happens when- based on my experiences as a wife to a pro per litigant, sympathetic friend to victims of carefully orchestrated manipulations of the court, and also my professional observations as a paralegal- a party tries to manipulate an outcome in a family law matter to their own advantage and not for reasons of their personal safety. I say firing the first shot because, some parties pursue an OOP based on recommendations from friends or family or even legal counsel that "If they can say they are afraid of the other party and file an OOP first, before the Petition for Dissolution, they will get exclusive use of the house" or "If they file an OOP and restrict the other parent, they can get more child support" etc etc, which are vile, underhanded, and damaging reasons to file for an OOP. Coming up with credible sounding fears or belief of another persons "possible" misbehavior during the decay of an relationship or marriage is not difficult. Anger. Outbursts. Even damage to personal property are unfortunate hallmarks of the end of many marriages or partnerships. Singular incidences of irrational behaviors and things said in the heat of the moment, and without demonstration of intent to repeat or escalate, should not be the basis for substantial restriction of one's access to their home or children, and yet, it happens. If these types of OOP's are allowed to go through, based on the Court's cautious belief that there "may" be harm to the other party if the OOP is not granted- ruling on the "better safe than sorry" side of things- a serious negative impact is felt at the very early stages of a family law matter (possibly before parenting time orders have been secured) and the status quo this can create may have negative repercussions for months or even years. For example, an OOP that only permits child custody exchanges at public place (McDonald's) or neutral 3rd party location and not at the Plaintiff's residence (church parking lot etc) and prevents a parent's access to the child's school could lead to Plaintiff asserting they can relocate without notice, or have final decision making for educational matters. I know the Courts try to safeguard against these types of manipulations- but it still DOES happen.
I do feel there is a relatively easy way to remedy the abundance of caution approach when granting Order's of Protection, and that is to include language in the Rules, on the Petitions, and on the issued Orders, regarding the consequences of making false allegations, and Rules on how the Court can enforce these consequences.
In no way should the language in the ARPOP ever make it harder for true victims of domestic violence to be protected, and same for those legitimately in fear of domestic violence being enacted on them if they try to leave the relationship or marriage. But in my opinion, the same efforts to protect victims rights can also protect those vulnerable to false allegations and OOP's used to manipulate the Court from ordering parenting time plans and decision making in children's best interests. At the last CIDVC meeting I was able to attend, I heard about new resources for d.v. victims such as video conferencing from hospitals. This type of resource make it easier for victims to meet the burden of proving domestic violence has occurred and/or will occur again, if the Order of Protection is not granted. On the other hand, if a party is lacking some substantial component in their request for an OOP- lack of police report, medical report, or other tangible evidence (counselor's report, proof of admittance to an anti domestic violence shelter, photographs of alleged damages, visible damage to Plaintiff, credible demonstration of coercive and controlling behaviors by the Defendant, credible witnesses testimony etc.) then the Court should consider admonishing the initiating party of the consequence of false allegations. I would also like this Committee to consider having language inserted in the Rules that if a party knowingly requests an OOP based on false allegations, or actively uses the issuance of an OOP granted on thin premise to further an agenda of restricting parenting time or decision making, and it is discovered or proven at a later date that the allegations in the OOP were a manipulation of the Court to have an advantage over the Defendant, then the consequences can include reversal of orders granting sole legal decision making to Plaintiff, restoration of equal parenting time, granting make up parenting time, AND ordering substantial financial judgments against the Plaintiff for the fees incurred by the Defendant (mental health evaluations, anger management courses, attorneys fees, supervised parenting time expenses, parenting coordinator or therapeutic interventionist fees, and so on if so required as a result of the impact of an inappropriately secured OOP).
This could be addressed in Rule 5(b)(1) of the Amendment which currently reads "A protective order must never be used as a way to modify, amend, affect, or diminish a parent’s rights to legal decision-making or parenting time as previously granted in a legal decision-making decree or a parenting time order from a court of competent jurisdiction..." however I feel the most vulnerable victims of false allegations are parties to proceedings pre-decree, so additional language would need to be added correcting this, which should be fairly easy because there are already statutes regarding custodial interference and access interference before the issuance of parenting time orders. Also, in regards to the issue of attorneys fees, which is addressed in Rule 8, Section 39:
"(a) Award. After a hearing with notice to the affected party, a judicial officer may order any party to pay the costs of the action, including reasonable attorneys' fees, if any. See A.R.S. §§ 13-3602(P), 12-1809(O), and 12-1810(O).
(b) Considerations. In determining whether to award costs or attorney fees, the judicial officer may consider:
(1) the merits of the claim or the defense asserted by the unsuccessful party;
(2) whether the award will pose an extreme hardship on the unsuccessful party; and
(3) whether the award may deter others from making valid claims."
I would like to point out this doesn't address compensation for fees pro per litigants may incur as stated in the previous paragraph, in the course of defending themselves from allegations. For example, allegations of PTSD against a parent who is former military may require numerous counseling sessions, which may be paid for by the VA, but the defending party might have had to miss a substantial amount of work, and use personal leave time, and when the counseling reports do not verify or even blatantly contradicts Plaintiff's allegations, and the OOP is quashed or the Family Court rules in favor of Defendant restoring parenting time etc., there should be a financial consequence placed on the abusing party.
It is my understanding there is a civil recourse to accomplish this but, if there was ever a time to be sympathetic to the victims of false allegations it is this scenario- the false allegations fuel restrictive orders, the "Defendant" exhausts every financial mean to prove themselves fit again, spend countless months or years fighting not just the initial restrictions but also the "fringe" effects of the Plaintiff's manipulations (parental alienation, lack of inclusion in significant milestones and life events of the child(ren), the stress and toll on family and friends during protracted litigation etc) and then the next injustice occurs- if they want compensation for proving Plaintiff falsely obtained an OOP and used it to interfere with their parenting time or decision making, they have to PAY to file and PAY to pursue a civil action and wait and wait and suffer even more?? And during the time it takes to litigate the defense, the more damage is done to the relationship between the Defendant and child... so adding MORE stress of litigation for damages is like salt on an open wound in cases like these. I don't have enough time tonight, or frankly the sophistication some of my cohorts do, to properly/ line by line create or suggest the wording this proposed amendment needs to truly address these problems. A lot of time and energy has gone into the public comments on the forum for the rule change regarding parenting coordinators, which may have detracted from the very good work also being done here by this Committee. But I still felt compelled to try to describe a problem I know exists, and propose a solution I know will benefit families and protect them from some of the horror stories I have heard on this subject.
Ultimately the proposed amendment of the ARPOP doesn't need much more, in my opinion, to really be all inclusive. I just hope this Committee, or future Rule change petitions if necessary, will take into consideration there is a vulnerable component of the parties going through the protective order process, and those are the victims of false allegations. These parents deserve recognition and implementation of rules to protect them as well. Please do not hesitate to contact me if you have any questions about my comment, and thank you for taking the time to read and consider this.