Husband and Wife were married in 2001 and separated in 2009. There are
two minor children from the marriage. The marriage itself was considered
volatile, and remained contentious after the marriage ended.
In May of 2012, after a heated confrontation between Husband and Wife,
Wife was arrested for assault with a deadly weapon and spousal battery
against Husband. Based on the arrest, a criminal protective order was
issued against her. She is to remain a minimum of 100 yards away from
Husband until the order expires in July of 2016.
In February of 2014, Wife filed a restraining order against Husband under
the Domestic Violence Protection Act (DVPA) stating that she feared for
her personal safety and for the safety of their two children because Husband
had threatened her.
At the DVPA hearing, Husband did not request a restraining order against
Wife, but he asked that one not be issued against him. He further requested
that sole legal and physical custody of their children be granted to him,
because of Wife’s past violent behavior against him. He cited the
2012 violence incidence as well as another incident that took place in
2009 when Wife allegedly physically assaulted Husband.
The trial court looked at the evidence presented at the hearing as well
as the evidence of past behavior and issued mutual restraining orders
against both Husband and Wife.
Wife appealed contending that the court lacked the legal authority to issue
a restraining order against her when there was no request from Husband to do so.
The Appellate Court agreed with Wife.
Although the DVPA grants the court to issue mutual restraining orders against
the parties, there must be notice and opportunity for the parties to present
their sides of the issue before a court can grant an order.
In this situation, Wife requested that a restraining order be issued against
Husband. At no time did husband request that a restraining order be issued
against Wife, so the court had no authority to issue an order without
a request to do so.