Particularly in Courts where a judge will grant an ex parte Civil Protection Order (CPOR) upon little or no cause, a pattern is beginning to emerge. It has become more common to commence a divorce case and simultaneously file for a CPOR. Doing so gets the other party (normally the husband) out of the house and away from the kids. Of course, if there is actual violence in the household, this may be a good idea. However, in the mess of concerns that can surround a divorce case at the outset, a CPOR will often complicate the practical issues if a no contact order is unnecessary while the divorce is pending.
In practice, having a CPOR in effect can often cause hardship for the wife as well as the newly homeless, surprised, and now desparate husband. In a phrase: be careful what you ask for.
The hardship of unnecessarily filing a CPOR during a divorce proceeding is clear and predictable: Wife files for Divorce and for Temporary Orders requesting an immediate Order from the divorce court for child support and payment of the bills during the pendency of the action. When confronted with the divorce, Husband gets upset and the parties argue. For obvious reasons, Wife does not want to live with Husband during this process, but cannot afford to move out with the children. Wife needs immediate financial resources but normally cannot get relief for another 2 to 4 weeks in the divorce proceeding. Thus, Wife asks the Court for a CPOR, alleging that Husband threatened her during their recent argument. If the Court is eager to ensure that no violence actually happens in this predictably tense situation, a CPOR is issued against Husband, who is now forced to move out and cannot communicate or help with the child. At that moment, Wife looks to be ahead and getting exactly what she wants.
Meanwhile, as time passes, the community bills continue to arrive, Child is confused and insecure about being unable to see or speak to his father, Husband becomes petrified at the thought of losing his child on top of his marriage and lifestyle, and Wife cannot afford all the bills, much less her attorney fees. A deadlock ensues, and no one is gratified.
At the initial CPOR hearing, the parties agree to continue the CPOR as to Wife for the pendency of the action to give the parties "some breathing room," and Husband gets some extremely limited visiation with Child. Husband feels helpless and angry.
Wife's lawyer may attempt to get to a resolution by offering some visitation in exchange for child and/or financial support in negotiations at the CPOR matter. However, according to Idaho Code, the CPOR Court does not have the jurisdiction to do much more than give Husband a temporary visitation fix: it is the divorce court's responsibility to hear testimony concerning custody and decide all support and property matters. Thus, unless Husband is feeling altruistic and agrees to give financial support to an angry Wife who is refusing him reasonable visitation with his child, Wife likely will not get any financial relief until the divorce court hears her Motion for Temporary Orders. Deadlock continues, no one is gratified, and it quickly becomes obvious that instant fix of the CPOR is not really a fix at all for anyone.
The Temporary Orders stage of the divorce is where the situation may get more difficult. Assuming the parties still cannot agree on custody and support, the divorce Judge will likely do one of three things: 1) he will hear testimony and decide all temporary issues on the matter at that time; or 2) the Judge will refuse to permit testimony on the matter and will issue a temporary custody order in the divorce case that paralels the CPOR visitation, a signficant amount of child support to be paid by Husband, and 1/2 or more of the community debts to be paid by Husband; or 3) he will refuse to take up the matter at all until the parties have attended and completed mediation.
If Option 1 occurs, it is a throw of the dice whether Husband or Wife is gratified, but the attorneys are: both parties have now spent an inordinate amount of money early on in the process in attorney fees, and discovery likely has not even been begun.
If Option 2 occurs, Husband may have lost because he was never afforded the opportunity to demonstrate that Child should spend more time with him. However, his visitation likely will not go below that that Wife agreed to or the Judge ordered in the CPOR. In effect, Husband has only lost his attorney fees in Objecting to Wife's Motion for Temporary Orders. He also must now pay child support during this action.
If Option 3 occurs, Wife's attorney has effectively penalized her client. Wife has waited 2-4 weeks for financial support that never came. Wife now owes attorney fees for preparation of her hearing on Temporary Orders with no results. Further, Mediation will continue to cost Wife money, and can continue take a lot of time. Wife will now likely need to pay her attorney a second time for preparation for her hearing on Temporary Orders in order to get her badly needed financial support. Having gotten what she wanted-- sole control over the custody matter and Husband instantly out of the picture-- has effectively backfired.
So what's the lesson? Don't expect an instant fix to a complex problem. Get a good attorney. Be reasonable and only use CPORs where necessary. And if you don't heed those two bits of advice, at least be prepared to get what you've asked for.
