Divorce proceedings, post decree custody battles, paternity cases, etc., can be both legally and emotionally driven. Many people can become frustrated and angry with the opposing side. But what happens when the other side starts making false statements about you, or even goes so far as to obtain a protective order against you based on false or exaggerated circumstances or incidents? Do you have any recourse?
Yes, if unwarranted, you can fight against such allegations under several legal theories.
First, if there is a protective order issued, you can request a hearing and defend against the allegations being made as being false, or not rising to the statutory level of proof. The Indiana Civil Protection Order Act states that a person who is a victim, or the parent or guardian of a minor who is a victim, of domestic or family violence may petition the court for a protective order1.
Each case is very fact specific, and considering the emotionally charged dynamic of domestic cases, facts and incidents can often be taken out of context, or dramatized. Generally, domestic violence includes: attempting, threatening, or actually causing physical harm to a family member or a member of the household; placing a family member in fear of physical harm; engaging a family member or household member in sexual activity under duress or threat of force; or beating, torturing, or killing an animal as a means of threatening or intimidating a family member2.
If you find yourself in a situation that a petition for a protective order has been filed against you, and you feel a protective order is unwarranted, it is highly recommended you contact an attorney, as the case law and statues are somewhat complex and dynamic as to what constitutes domestic violence, defending against false allegations may prove difficult, sometimes it is difficult to even determine what relationships fall within the act.
Another option is suing under the theory of defamation, which includes libel and slander. These are words that are often very commonly discussed; however they have very specific legal meaning. Defamation is “the publication of anything injurious to the good name or reputation of another, or which tends to bring him into disrepute.” Libel is a defamation that is intended to be read, such as publishing something in a newspaper, or on the internet for example. Slander is defamation that is spoken, meaning something false that someone said to another person about you3.
Defamation can be very difficult to prove and there is extensive case law with respect to determining what defamation is, and what type of defamation results in the defamed person being able to collect damages. Ultimately, ones reputation cannot be ordered restored; the court’s only remedy is that of money damages. In all cases, as the old adage goes “the truth will set you free”, if any part of the alleged defamation is actually true, one cannot collect damages4. By definition, defamation requires what is spoken or written to be absolutely false, and to either intend to, or actually, damage the reputation of the person it was spoken or written about.
A recently decided Indiana Court of Appeals case involved a man who was arrested, charged with a felony for domestic battery and a misdemeanor for invasion of privacy, jailed, and had a protective order issued against him because his wife (soon to be his ex-wife as they were involved in a divorce proceeding) told police that the man had battered her, and violated the protective order. The man was acquitted of some charges following a jury trial, and the prosecutor dropped the remaining charges. The man claimed that the wife’s allegations were false, and were made to gain ground in the impending custody dispute.
Following his release from jail, he filed a law suit and claims against his wife, the county, and the city, alleging false imprisonment, abuse of process, malicious prosecution, defamation, intentional infliction of emotional distress, tortious interference with child custody and/or parenting time, and civil perjury among others. The complaint was dismissed in its entirety, and the Indiana Court of Appeals upheld the dismissal on some counts and remanded the matter to the trial courts on the counts against his wife (ex-wife) alleging malicious prosecution and intentional infliction of emotional distress5.
The trial court outcome is unknown at this time; however, to clear his name, and regain control of parenting time with his children, this man has been engaged in a lengthy battle dating back to 2008, and no doubt costly. The case did not discuss the ripple affect these allegations may have had, such as loss of job (which could include financial hardships up to and including losing a car, or a house), loss of time with his children, and undoubtedly legal fees.
If you find yourself embroiled in an emotionally charged domestic dispute, and it rises to the level of false allegations, civil protective orders, or allegations that could have criminal implications, you should seek the advice of an attorney to help you navigate through these situations. These cases are complex because they generally involve many different areas of law, including criminal, firearms, domestic, protective order, and in some cases constitutional law6.