Restraining orders have exploded in the last five years across the country as both a tool to protect and a sword to attack in divorce or custody cases. The last thing I tell my clients before going into court to defend a restraining order is not to react. Just because someone walks through a courthouse door does not mean they will tell the truth. My client found out that her best friend was sleeping with her husband and was counseling her during the difficult times of her marriage to leave the marriage. It wasn’t until after the divorce did she found a string of sext messages so hair-curling that it would make the most jaded person blush. SO one day the two find themselves at the same school event in Canfield. In the parking lot a year’s worth of frustration leads to my client throwing out more than a few sharp remarks rhyming with “hut, hut hut.” A cell phone is either dropped or snatched and next thing you know the “other woman and Judas of a friend is filing a restraining order to keep the client/mom from going to any future school events. Snatching her husband wasn’t enough. So I said don’t react in court. But the first ting the Magistrate says to the ex-husband and the ex-aunt who came to support the skank’s victimization is “Oh are you here to support your daughter’”. This causes my client to emit a large burst of laughter at the thought of the scarlet woman be mistaken for her ex’s daughter. A short kick under the table to help her gain her bearings and the hearing continues. The Magistrate will take testimony from both sides and the one point litigants forget is that there needs to a pattern of conduct that causes such mental distress or fear of physical harm to the party seeking the restraining order. It is not enough to have your feelings hurt.
“Pattern of conduct” is defined as “two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents.*** [t]he posting of messages or receipt of information or data through the use of an electronic method of remotely transferring information, including, but not limited to, a computer, computer network, computer program, computer system, or telecommunications device, may constitute a “pattern of conduct.” Revised Code §2903.211(D)(1). “Mental distress” means “[a]ny mental illness or condition that involves some temporary substantial incapacity or mental illness or condition that would normally require psychiatric treatment; or [a]ny mental illness or condition that would normally require psychiatric treatment, psychological treatment, or other mental health services, whether or not any person requested or received psychiatric treatment, psychological treatment, or other mental health services.” R.C. §2903.211(D)(2).
After the conclusion of the testimony and after further considering the manner of testifying of each witness; the reasonableness of the testimony; the opportunity each witness had to see, hear and know the things concerning which that witness testified; and the interest and bias of each witness; together with all the facts and circumstances surrounding the testimony; the Magistrate has to find that the person seeking the restraining order has proved, by a preponderance of the evidence, that Respondent knowingly engaged in a pattern of conduct consisting of two or more incidents closely related in time, which caused Petitioner physical harm or mental distress; or caused Petitioner to believe Respondent will cause her physical harm.
Of course in this case the Magistrate found that there was no pattern of conduct. The case was dismissed. But in every case where someone is seeking a restraining order and the issue iinvolves custody or leading up to a divorce it is important to consult an attorney to see how your rights might be effected.. Pease contact my offices at 330-729-9777 or email me at email@example.com if I can help.