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.