Stupid (overly broad and vague) parental restraining orders

Posted Friday, February 17th, 2012 by Gregory Forman
Filed under Child Custody, Law and Culture, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

My one-man war against overly broad restraining orders continued this week, as I observe an accelerating trend towards guardians, litigants and judges wanting to micro-manage the small details of parenting.  At a recent mediation the mediator assumed my client would agree with the guardian’s recommended restraints.  Included in those recommendations were requests that the parents:

  • not expose the children to sexually explicit TV, movies, books or other sexually explicit content
  •  be restrained and enjoined from exposing the girls to violent conduct or language

In counseling my parent-clients whether to agree to restraining orders, I start with the assumption that violation of these restraining orders will be treated as criminal contempt.  This was the recent experience of our mediator, who had seen an opposing party recently incarcerated for overnight paramour exposure.  I also believe treating such violations as criminal contempt is thoughtful jurisprudence, as one really cannot adequately remedy the condition with mere civil contempt.  However, because such violations are being treated as criminal contempt, I counsel my clients to be very careful about agreeing to overbroad, vague or unduly intrusive restraining orders.

When the mediator noted surprise to my objection to what are becoming routine restraints, I posited a series of questions to him:

1. What exactly is violent language?

2. Is kissing “sexually explicit”?

3. Isn’t the type of simulated sex one sees in most PG-13 romantic comedies “sexually explicit”?

4. Do we really expect my client not to allow his daughters to see such movies when they are teenagers? [one could make a similar point about young adult novels such as the “Twilight” series]

The mediator acknowledged that he couldn’t answer the first two questions and that the answer to the third question was “yes” and fourth question was “no.”  He stopped questioning why my client shouldn’t agree to such restraints.  Instead we resolved these concerns with the following restraints:

  •  Neither party shall expose the minor children to domestic violence.
  • Neither party shall expose the minor children to pornographic materials.

Those restraints I understand and believe my client understands.  Admittedly the definition of “pornographic” can be a bit vague but to, cite Supreme Court Justice Potter Stewart’s opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964), “I know it when I see it.”

3 thoughts on Stupid (overly broad and vague) parental restraining orders

  1. I tend to oppose all restraining orders all of the time. Restraining orders never seem to benefit my client and judges will not enforce restraining orders against the adverse party. When the roles are reversed, the adverse party uses the restraining orders to harass my client and the judge enforces them.

    I never understand why lawyers seek restraining orders against the alienation of marital property. The marital estate is established as of the date of filing. My professional preference is that the adverse party sell the entire marital estate. If it is sold for the fair market value, then we have one less problem. If it is sold at less than the fair market value, then I have a wonderful time showing the judge why the adverse party should pay my client one-half of the fair market value. Those silly restraining orders, if strictly enforced, prevent parties from eating marital food from the refrigerator or using marital property if the use might cause depreciation.

    Another problem with restraining orders is that they often provide a party with a false sense of security. I advise my clients that one spouse may kill the other if he or she is willing to pay the penalty and a restraining order will not help. Another problem is that many parties see restraining orders as weapons to threaten and harass a spouse. Even seeking a restraining order increases the level of distrust and hostility.

    I never understand how a party can get a restraining order, such as a restraining order against pornography, unless the party can prove some threat of immediate harm, such as the adverse party being likely to expose the child to pornography and the likliehood that the child will be irreparably harmed by that exposure.

    I see the pursuit of restraining orders by lawyers as part of the “scorched earth policy” that many lawyers advocate in separation and divorce cases, reducing civility while increasing hostility. When I explain this to my clients, they understand and agree.

    I also explain to my clients that if they adverse party does something stupid, even if it is not prohibited by a temporary restraining order, it will work to my client’s benefit at trial, and that the client should be happy with the short term inconvenience or annoyance in exchange for the long term benefit.

    Having spent this much time on this rant, I think I will post it to the Family Law List Serve as well. Does the South Carolina Constitution prohibit dual posting?

    1. I agree that restraining orders against disposing marital assets are insane.

      I once had another attorney seek to hold my client in contempt for disposing of a computer with a crashed hard drive. That attorney then argued that my client had disposed of the hard drive to dispose of evidence of his (alleged) adultery. Even pointing out that this attorney had sent me a 40+ item request for production that failed to include a request for a copy of my client’s hard drive, he persisted in prosecuting that claim. After that, I never ask for this restraint and resist it when possible.

  2. Paul D. Schwartz says:

    This is very interesting. I find myself in agreement. The problem is when proposing such ROs, we have a thought in mind of exactly what we are trying to achieve, but the results noted above are not probable but possible, so they must be avoided. Thought provoking ! Thank you both !

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