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Abusing Protective Orders

What is a protective order?

It is a civil order from a judge. Its purpose is to provide an extra level of protection to people who have been abused, harrassed, or stalked. It accomplishes this by creating a criminal penalty for a violation of the order. Normally protective orders state that the defendant may not contact the petitioner either in person, by text, phone, or social media;

Who Can Get a Protective Order?

Inmost cases, the petitioner must either be a family member, in a relationship, or had been in a relationship. There is an exception for people that are none of the above, but a police report must have been filed giving evidence of harassment or stalking.

What Happens If the Abuser Violates the Protective Order?

The violation of a protective order may result in the respondent’s arrest for violation of the protective order. The first time is a misdemeanor and further abuses of the protective order are punishable by a felony. This means jail, or possible prison time for anyone who ignores a protective order.

How are protective orders abused?

Far too many times, husbands or wives will use protective orders to cause their spouse problems and potentially give them an advantage in a divorce, paternity, or child custody case. Over and over again, unscrupulous attorneys and devious clients file protective orders on allegations that are completely false. Worse they insight and entrap the other party into arguments and possibly fights just so they can use this tool.

Horrible Outcome

The unintended consequences are not trivial. First, the more this tool is falsely used for manipulation of family cases, the more it becomes watered down for people who really needs it. Second, real violence can occur when someone pushes another person too far. Intentionally prodding and pushing someone into an argument or a fight to gain an unfair advantage in a family case can be like pouring gasoline on a fire. Finally, to often children are added to protective orders to manipulate child custody disputes.

How do you protect yourself?

First of all, don’t fall for it. Keep your cool and just walk away. If there are false claims, hire an attorney that specializes in protective orders, who can help uncover the truth and has no fear when it comes to putting on a hearing and cross examining the petitioner. A good litigation attorney can shine a light on the lies and uncover the truth.

Author: Ciera N. Freeman

Boeheim Freeman Law - 918-884-7791

Oklahoma Supreme Court Acknowledges Same-Sex Parenting

Non-Biological Parent’s Rights

In recent years there have been several Oklahoma court cases that established certain parental rights for non-biological parents in same-sex relationships (Eldredge v. Taylorand Ramey v. Sutton).  However, a more recent case, Schnedler v. Lee, poses slightly different facts than Eldridgeand Sutton.  Rather than two parents fighting for custody, in Schnedlerwe have three adults who have vastly different characterizations of the relationships that existed between themselves and the child in question. 

Schnedler v. Lee

In Schnedler, the Plaintiff states in the initial filing that she and the Respondent were in a relationship for more than ten years.  During that time, they had a daughter, whom they raised together.  The Plaintiff also states the sperm donor, who is the Third-party Defendant in the case, had no contact with the child and provided no financial support during the ten-year period, and it was only after the couple separated that the biological father had any contact with the child.  Furthermore, the Plaintiff says the donor signed a document indicating that he waived his parental rights and the Plaintiff, Respondent, and child lived for ten years as a family unit.  The Plaintiff states in 2015, when she and the Respondent separated, the Respondent initially followed an agreed visitation schedule for approximately seven months but then abruptly and arbitrarily refused to allow the Plaintiff any further visitation with the child.

  The Respondent states very different facts. She acknowledges she and the Plaintiff were at one point in a dating relationship, but shortly after the child was born they terminated their relationship and were no longer living together as partners but simply as roommates.  The Respondent claims the Plaintiff did not act as a parental figure in the child’s life, and the Respondent made it clear she was the child’s sole parent. The Respondent further states that the biological father of the child (Third-party Defendant) had been in regular contact with the child, and he had provided some financial support, while intending to maintain a “father-daughter” relationship with the minor child.  The Third-party Defendant corroborates much of this version of the facts.  

Three-Prong Test

Initially, the trial court and the appeals court sided with the Respondent, even though the court in Ramey“held that when persons assume the status and obligations of a parent without formal adoption they stand in loco parentis to the child and, as such, may be awarded custody even against the biological parent” (Ramey v. Sutton, 2015 OK 79, ¶ 15, 362 P.3d 217, 221).  The trial court and the appeals court based this decision on the three-prong test developed in Ramey which states that for in loco parentisto apply the couple must be:

(1) unable to marry legally; 

(2) engaged in intentional family planning to have a child and to co-parent; and 

(3) the biological parent acquiesced and encouraged the same sex partner's parental role following the birth of the child" (Id.).

The trial court ultimately determined that even though the facts of the case met the requirements for the first two prongs of the test, that because the biological father had not participated in the application of the third prong, that the test failed and in loco parentisdid not apply and as such, she did not have sufficient standing to pursue custody and visitation.  The appeals court affirmed this decision.

Equal Footing As Biological Parent

The crux of the Supreme Court’s decision to overturn the trial court and appeals court lies in disagreeing with their application of the three-pronged test that was formulated in Ramey. Their analysis indicates that the encouragement of one biological parent is sufficient to meet the standards in the third prong of the Rameytest and state as follows:

In this case, the record amply and plainly reflects that Heather both acquiesced in and encouraged Lori's role as a co-parenting mother to J.L. Accordingly, all three prongs of Ramey's standing test were satisfied--irrespective of Kevin's consent, or lack thereof, to Lori's parental role. This determination, however, does not end our analysis. Just as we broadened Eldredge's holding in Ramey to remove the barrier of an express, written co-parenting agreement between same-sex partners, we hold that a non-biological same-sex co-parent has the right to seek custody, visitation, and support of his or her child on the same equal terms as the biological parent (Schnedler V. Platt2019 Ok 52).

She is a Parent

However, the Supreme Court did not end there.  In their conclusion, they state that “Lori [Plaintiff] did not act in the place of a parent; she is a parent” (Id.).  As such, she, and others in similar circumstances, have sufficient legal standing to pursue custody, visitation and support for the child in the same way as the biological parent and that doing so is in the best interest of the child.  

    This court case is important because it expands the rights of those living in non-traditional family situations, so that they can have greater protection under the law.  The landscape of relationships and families has changed so much in recent years and it is crucial that our legislature and judiciary work to provide equal protection under the law that coincides with the needs of society.

 Author: Lauren Stanley

Provided by: Boeheim Freeman Law, 918-884-7791, www.onyourworstday.com