Everything You Need to Know About Orders of Protection. Chris Combs and Steve Waterkotte answer the most common questions about Orders of Protection defense and Ex Parte defense in Missouri.
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Scott Michael Dunn: Welcome back to the Hexen podcast where we take marketing to the power of X.
Joining us today again is Chris Combs, Steve Waterkotte from Combs Waterkotte out of Clayton, Missouri.
Today we’re going to talk about orders of protection. So I think Steve, this is your ballpark, right?
Steve Waterkotte: Yes. I do a lot of orders of protection. Almost 90 percent or more, 95 percent, are on the respondent side. That is the individual served with the order of protection.
Scott Michael Dunn: Oh, so you’re defending more often than issuing.
Steve Waterkotte: Correct.
Scott Michael Dunn: Interesting.
Steve Waterkotte: In an order of protection proceeding, you have a petitioner and a respondent.
The petitioner is the individual who is filing for the order of protection, otherwise commonly known as a restraining order. That is the person seeking to get a restraining order against somebody else. Again, that’s the petitioner.
The person who is served with the order of protection is the respondent. And that’s who we primarily represent in these proceedings.
Scott Michael Dunn: So let’s go all the way to the beginning. What is an order of protection?
Steve Waterkotte: An order of protection is a petition filed in the circuit court. It could either be filed in the county in which either the petitioner or respondent reside in, or the county in which the alleged actions took place. Usually it’s filed in the county in which the petitioner resides in, and they are asking the court to grant certain relief. And that relief is most commonly no communication, to prohibit the other party, the respondent, from communicating, from committing any kind of acts of violence or disturbing the piece of the petitioner.
And there is usually a foot requirement in their request. And what I mean by that is the petitioner is saying do not allow this person to come within 500 or 1000 ft from me. So those are the usual request for relief and what the court will ultimately, most commonly, grant if the order of protection is in fact granted after a hearing.
Scott Michael Dunn: You say you work with the respondent often. So, how can I fight an order of protection?
Steve Waterkotte: There’s a number of ways you can fight these.
First off, I always tell folks, even if they may have done something wrong, had a lapse of judgment, acted irrationally perhaps, it’s wise to get counsel, an experienced attorney in this area. It’s a very niche practice area where the laws are very defined. If you don’t practice in this area you probably are not going to be that familiar.
In many cases, even when I have a client that may have done something wrong, maybe even got violent, the law is very specific and in many instances it requires more than one incident. Not always, but in many cases it requires the respondent to do more than just one thing. So it’s always wise to seek counsel when you’re served with one of these.
How this typically unfolds is you are served with a petition, you get a knock on the door or at work, handed over a petition with a number of allegations contained in there, a number of forms of relief the petitioner is requesting. They will typically set these for hearing within two to three weeks, sometimes even sooner. I always say these are one of the fastest moving cases through our judicial system. It’s done on purpose, there’s a rational behind it, because somebody may be in danger. They can’t have a court date waiting three months out, so they’ll have a court date within two weeks.
When I get a call, usually somebody’s calling and saying, “Hey, I have court next week. I have court in two weeks,” which is not an issue, but I always tell these folks, “Time is of the essence.” You need to hire an attorney, because we have work to do on our end, which we’re able to do. We have a system in place for when we get these cases in our office, we make sure we give them the proper attention and detail it deserves, and that we’re well prepared walking into this hearing.
Chris Combs: And one thing I’ll say regarding orders of protection – and this is my law partner’s specialty – most of the case law out there on orders of protection, he’s created, or at least quite a bit of it.
But what I will say is it’s a blend of criminal law, family law and civil law. And what people don’t understand is, “Oh, this is a restraining order. I don’t care if I ever see this person again, right?” So sometimes they just walk in there and they don’t realize that judge can make housing decisions, meaning you could be put out of your own home, they could make temporary custody decisions with children. The gravity of what that judge can do, they can order you to do batterers intervention.
And again, this is Steve’s specialty, but people walk in there thinking, “Oh, it’s just a restraining order. I don’t care if I ever see this person again,” but the ramifications can be immense. Having a full order of protection against you is not good.
And furthermore, people do not realize when they walk in that courtroom it is not just about, “Hey, I have to stay away from this person.” The judge has broad discretion on what they can do.
Scott Michael Dunn: Wow.
Steve Waterkotte: Yeah. And the fact of the matter is when it’s gotten to this point, they’re not calling me to say, “Hey, can you fight this? I still want to try and talk to them.”
That point is taken, right? They get served with an order of protection, they’re not going, “Hey, I need to get a lawyer to fight this so you allow me to continue to try to be around them.” Nobody’s calling me to defend these things for that purpose. It’s the reasons that Chris just said, all these things that a judge can do, custody, the whole gamut of things that he just listed.
What we’ll get to as well is that these things become part of your record. So that can have damaging consequences and ramifications as you progress through life and get jobs and things like that.
Scott Michael Dunn: Let’s say, like you presented it, the situation occurs and they think it’s no big deal. So they go to the hearing and now they’re compromised. The defendant or the respondent is like, “I should have called earlier. Is there anything I can do? How can I appeal this order of protection?”
Steve Waterkotte: It’s funny you say that, because we probably get a couple calls each week [from] somebody in that exact situation. [They] thought it wasn’t a big deal.
I get this one a lot: “These were BS allegations. I didn’t think I needed a lawyer. Truth is on my side,” which is probably all the more reason to get a lawyer, right? But I get that one a lot. We get probably three, four calls a week, folks that walked out of the courtroom and say “I didn’t think I needed a lawyer.” And they went to the hearing and the order of protection was granted for a period of usually one year or more. And they’re calling to try to undo this now.
I always tell them, “Unfortunately this process got a lot more complicated and expensive.” Because now, like you just mentioned, we’re talking about appeals.
There’s really only two things. We can do a motion to set that aside. Which generally, in most cases, is not going to be effective. You’re asking the judge to undo their ruling. It’s like a parent that grounds a child, and then, your child comes and says, “Hey, can you vacate your decision?”
Scott Michael Dunn: It’s like telling a judge, “Oh, you were wrong.”
Steve Waterkotte: Yeah. And them saying, “Yep, you were right, and I’m overturning it.” But that is a possibility. We filed them in some cases when [there are] certain unique facts, circumstances.
An appeal goes to a higher court. So you start at the trial court. Let’s say we’re in St. Louis County. Now, if you have to appeal, you’re appealing to the Missouri Court of Appeals, Eastern District. It’s typically a nine month process, give or take. Like I said, it becomes a lot more expensive, a lot more time consuming, and a lot more complex to try to undo what the judge already ruled on. That is always one of the most difficult tasks in the judicial system, is undoing a judge’s prior ruling.
We do a lot of appeals. We’ve been successful probably about 50 percent of the time, which is incredibly high. The statistics in Missouri, most cases are affirmed on appeal probably at a rate of 95 percent or higher. We are successful on our appeals. We do a handful each year in this area of law and about 50 percent of the time. Again, it becomes more complex, expensive, and time consuming. But, it can be done.
Now folks that show up for a hearing, lose, and they call and say, “Hey, what can I do now?” We start talking about exploring the process of what an appeal looks like. We do more appeals in this area than any other firm in the state of Missouri. In fact, I just challenged – first ever challenge in Missouri – the newly enacted statute that allows judges to enter an order of protection for a period of up to 10 years.
Scott Michael Dunn: Oh, wow.
Steve Waterkotte: And that’s relatively new. Prior to that, you could only get one for a period of one year with an automatic renewal for a year, which in effect would be two years. Then it makes the petitioner come back each year and try to renew it and things like that.
Well, the legislature has created this new law that allows petitioners in cases that meet certain requirements to get an order of protection against the respondent for 10 years.
I had a case where I didn’t represent the individual at the trial court level, but after the judge in that case ruled and entered an order of protection for 10 years, they called our office. I was very interested because again, this hadn’t been challenged yet.
Chris Combs: Unchartered territory.
Steve Waterkotte: Yeah, and it was the first appeal in this area. We took the case on. It was gonna be a difficult case. [There were] difficult facts. But nonetheless we jumped in very eager to do it. We lodged the first ever challenge to that law in the state of Missouri.
Unfortunately, we were not successful. That said, again, those facts were very difficult in that particular case. But, we’re proud of the fact that we did challenge this, and it created some law. The statute was fairly vague and broad. In the case we brought, the court of appeals expounded on what it requires a petitioner to prove to get that 10 year order of protection.
Scott Michael Dunn: Wow. That’s a huge leap. To make things like that happen.
Steve Waterkotte: Yeah. In a 10 year order, I always say, there’s a stigma that attaches to these order protection cases. You are labeled an abuser or a stalker.
Chris Combs: Violent.
Steve Waterkotte: Or somebody who’s sexually assaulted somebody. There is certainly a stigma that comes along with having one of these. These are on CaseNet. Employers look that up and you’re going, “Whoa, that’s a humongous red flag.” If you were doing a background check and you say, “Hey, this guy who had an order of protection entered against him.”
Now they’ll do it for 10 years. You already have red flags under a year, but now a 10 year, certainly you’re going, “Oh, there’s some serious red flags. What the hell did this person do to have that order of protection against them for 10 years?”
That said, the law does require more than just the ordinary. It requires the court to make specific written findings on various things in order for them to justify the 10 year order.
The case that we did appeal, like I said, created law in that area and provided more context behind the new statute.
Chris Combs: And one thing I think is very interesting and Steve, I’d like you to tell this story. No one would probably believe it, but this is why you need a lawyer. There’s a million reasons why you need a lawyer for an order of protection.
But as Steve was saying, you could do something irrational or have a lapse of judgment and think that there’s no way to win. And if you don’t know this law, which is so nuanced and why Steve specializes in this – the story about getting one dismissed over the gun. The point of the gun.
Steve Waterkotte: Oh, yeah.
Chris Combs: That’s huge. No one would think you would win that one.
Steve Waterkotte: I took a case up on appeal where a neighbor literally pointed a gun at the neighbor. But in that case, the neighbor never testified that she took that seriously – which you would probably normally infer from those circumstances – but never testified that she was in fear of physical harm.
That is one of the requirements. The petitioner must prove that they were in fear of physical harm. There’s both a subjective and an objective component behind it. In that particular case, we appealed it to the Missouri Court of Appeals Eastern District and it was reversed and we were successful on appeal because of that.
When I’m looking at an appeal and looking through a trial transcript, I’m almost always able to find issues that have merit to bring forth to contest the entry of the order of protection on appeal.
It doesn’t mean we’re always successful, but like I said, we’re probably about 50 percent on appeals.
Chris Combs: Which, the general rate on successful appeals in the criminal world is less than 2 percent, probably?
Steve Waterkotte: Easily less than that.
Scott Michael Dunn: Wow.
Steve Waterkotte: Take that as a coin flip really, right?
So, when I’m reading the transcripts on appeal, I can almost always find issues that have merit that we can bring forward to challenge the entry of that order of protection. Again, doesn’t mean we’re always successful, but we’re able to find these various issues to challenge it.
Scott Michael Dunn: Now, speaking to challenging in order of protection – say they call properly and don’t wait with the hopes to appeal – what kind of evidence do you need to challenge an order of protection?
Steve Waterkotte: Sure.
First off, you gotta start with this premise. It is the petitioner that filed the case. So it’s the petitioner’s burden of proof.
And what I mean by that is we don’t have to do anything. We do, of course, and we challenge the credibility of the petitioner and the veracity of their testimony as well. But the petitioner has the burden of proof and the burden in these cases [is] by preponderance of the evidence, which in layman’s terms mean more likely than not. 51 percent I believe, 49 percent I don’t. That’s good enough, you met the burden of preponderance of the evidence. If you’re looking at a scale, if it’s tilted slightly in favor –
Scott Michael Dunn: It’s just enough.
Steve Waterkotte: Correct. So whereas in the criminal world, beyond a reasonable doubt, that’s a very high standard. It’s not that in these cases.
So you start with that basic premise, that a petitioner has the burden of proof. And how we challenge these at a hearing is almost always twofold. It’s credibility and veracity.
We are challenging that this petitioner is not credible. In many cases these things turn on text messages, emails, things like that where we can refute their testimony, show them that they’re not credible, and furthermore show that the statements that they’re alleging or saying that our client did are not truthful. And you’ll see a lot of this in this arena.
Sadly, this area of law, it doesn’t take much. You can walk into the courthouse – I always joke about this – I tell folks that I could walk into the courthouse after we are done with this, I can walk in there and say, “My wife hit me on the head with a frying pan last night at dinner.”
And guess what? She will be served with an order of protection. She’ll be ordered to leave the house, because she’ll have a foot restriction, right?
Scott Michael Dunn: Sure.
Steve Waterkotte: And that’ll be temporary, a temporary order, until a hearing is set, which is usually two to three weeks down the road.
And she’s out of the house just like that. I could completely fabricate – and in many of these cases, these are fabricated allegations, for whatever reason. A boyfriend girlfriend dispute, cheating, financial stuff, neighbors that are feuding. You see that commonly.
Scott Michael Dunn: It’s fueled by emotion.
Steve Waterkotte: It is. They do it in the heat of the moment, typically.
A lot of times cops get called on domestic cases and there’s not enough evidence to make an arrest. Cops will routinely tell people, “Go file an order of protection.” It punts it off their radar, sends it to the court, they’re not involved. “Hey, we don’t have enough here to arrest, go file an order of protection.” And it’s wiping their hands clean of it. They put it in the court, let a judge make a decision. They’re not involved in this.
So that’s how these things get triggered in many cases. A lot of times when folks learn of this process, it’s ripe to be abused. I just can go down to the courthouse or the police station and fill out this form. It’s terrible.
I always say to people, I can walk in there and say, “My wife did this last night at dinner. Hit me in the head. Here you go, ma’am.” She’s served. She’s out of the house until that hearing date. It’s scary.
Back to the initial question, we challenge the credibility and we challenge the truthfulness of their statements.
Chris Combs: Is it fair to say that a number of these are based solely on testimony?
Steve Waterkotte: Yes. And that’s also scary because not every case has something that refutes their credibility. You get a petitioner that’s intelligent and that’s emotional and cries.
These judges on a close case, I always say they will likely err on the side of caution and enter the order of protection. Because God forbid they don’t enter the order of protection and something happens a week later, one of them kills one of them. The Post Dispatch is writing about this and what they’re going to do is go, “Why didn’t that judge enter that order of protection?” So in a close case, I always say they’re likely going to enter the order of protection.
Again, credibility and the veracity of their statements is how we attack these. That’s what’s critical.
Chris Combs: Cross examination is what it’s all about.
Steve Waterkotte: And that’s how we do it, through cross examination.
Clients routinely say, “Well she doesn’t have any evidence.” And I always say, “Testimony is evidence.” We live in such a world where we think, if you don’t have DNA if it’s a sex assault case, or you don’t have pictures of injuries, or text message proof or recordings of these threats allegedly made. A petitioner does not need that. They can literally just go in there and say, “This is what happened.”
Now, does that help? Yes, of course it does. Does that bolster their case? Yes, of course it does. But they don’t have to have physical evidence in the form of pictures, recordings, text messages, emails, things like that.
Chris Combs: Steve, that’s something we see across the board, not just in order of protections, but in criminal defense in general. I even deal with it and I don’t handle orders of protection, but there are many times that clients say, “There’s no evidence.” Without being callous, I try to explain to them, “There’s people sitting in prison all across the country for the rest of their life based on what someone testified to in court.”
Again, with the modern day CSI, everyone thinks there’s gotta be some type of physical evidence. But testimony is evidence. And that’s a critical thing to take away from this.
Scott Michael Dunn: Preponderance of hearsay.
So I know you’ve touched on what happens if you receive this order of protection. So how long does an order of protection last?
Steve Waterkotte: One year. And the judge can do a minimum 180 days all the way up to 10 years. Most common is one year.
Scott Michael Dunn: Okay.
Steve Waterkotte: And they can do one year with an automatic renewal for one year. In cases, like we’ve previously said, that are very egregious, they can do it up to 10 years if they make certain written specific findings.
But the common time period is one year.
Scott Michael Dunn: One year. And it doesn’t loosen the restraints of that?
Steve Waterkotte: No. That’s a court order that, like I said, prohibits you from communicating in any medium, through any third party, from contacting that person, disturbing their peace, going near them.
There’s cases where you might have children on the same soccer team. I’ve seen all that where. “I can’t go to my kid’s soccer game now because this other parent filed an order of protection and our kids play on the same soccer team. Or they’re in the same school, and I can’t go to the bus stop.”
While the person may not want any contact or communication anyway, it can impede their own life, depending on the dynamic of who filed this. A lot of times family members file these. You’ll see it commonly within families. Not just husband and wife or boyfriend, girlfriend, but brother in law or cousin or son. I’ve seen them all.
Okay, now, how do you navigate Thanksgiving? I can’t be there because so and so is going to be there. Or we see this in small towns. We represent folks all across Missouri, where there’s only three restaurants, bars in town and I have an order that says I can’t go around John Smith. Well, John Smith frequents these spots. So it impedes my own life and my enjoyment of where I can go. Especially, like I said, when you’re in these small towns.
Chris Combs: And Steve, how does the law work on that? Meaning, if someone has a full order of protection against you and you bump into him at church or the grocery store.
Steve Waterkotte: You have an obligation to leave. I always tell my clients you can’t predict where somebody is going to be. So if you have an order of protection against me, the judge signed it, it’s in place for one year, and you’re walking through Straub’s and I’m in there toting my cart along, I see you, this is a one way street.
You don’t have to leave. You’re the one with the order of protection against me. It’s my obligation. I’m the one that has a court order saying I can’t be around you. So I’d have to up and leave.
Scott Michael Dunn: How’s that managed?
Steve Waterkotte: It’s common sense.
Scott Michael Dunn: You run into somebody, are you breaking the law?
Steve Waterkotte: You’re not. And I always tell clients that you can’t predict, I can’t predict where you’re going to be, right? I can’t predict when you’re going to grocery store, when you go to the gym, when you go to the Wallgreens, things like that.
Chris Combs: Out to eat.
Steve Waterkotte: It rarely comes into play in St. Louis, because it’s a bigger city, obviously, and the county’s large.
You’ll see it in the small towns. I’ve represented folks in Hannibal, Crawford County, Steelville, Cuba. These kinds of towns have one little downtown with three restaurants, one drug store. You’re going to bump into people. And so that’s another reason.
It impedes your own enjoyment of life, but the obligation would be on the person who the order is against. You have no obligation to get up and leave. If I saw you, I’m sitting down for dinner and you walk in, guess what? I better pack up, pay my bill and leave.
Now I’m not breaking the law unless I kind of stick around. I’ve never had a client arrested and said, “You accidentally bumped into this person,” when it was truly that.
Generally speaking, it’s a common sense approach. But again, under that hypothetical, the obligation is for me to leave.
Scott Michael Dunn: That reiterates the nuances of orders of protection.
Chris Combs: Sure. I just have one quick comment. Not just the ramifications of having a full order of protection entered against you, like we already discussed, but once there’s a full order entered against you, if you break that you’re looking at a criminal charge of violating an order of protection.
Again, people think, “I don’t care if I ever talk to that person again.” But you violate that thing, here comes a criminal charge.
So it can really build on itself and become a big deal.
Steve Waterkotte: And that’s a great point. These two people are feuding. They’re at odds, right? The full order of protection, if it’s granted after a hearing, just what Chris said, now that person can call [and say], “Hey, he drove by my house,” and that’s usually enough to get that person arrested, which is scary. Now they have a misdemeanor for violating an order of protection.
I always say these things can weaponize a petitioner. You get a boyfriend and girlfriend, the girlfriend files the order of protection against the boyfriend. She can’t stand him. She gets that full order of protection. Many times, these people – it weaponizes them. In the sense that, “Okay, now I got this piece of paper here in my pocket. I’m gonna call. ‘Hey, guess what? He showed up at this party and didn’t leave. He drove by my house. I saw his car drive through. I have a ring cam.’” So you see all that and it can, absolutely, and we represent folks all the time on violating an order of protection.
So that’s another big reason that, despite what your feelings are for the petitioner, – again, you usually aren’t calling our office saying, “Hey, I still don’t want to talk to that person.” You’re fighting this thing for a number of reasons. And that’s another big one, what Chris said, is that you don’t want the full order of protection entered. You also don’t want to weaponize that petitioner to make it easy for you to get arrested.
Scott Michael Dunn: Right. Sounds really complicated.
Steve Waterkotte: Yes. It can be if you get yourself entangled in one of these. I’ve seen it where they get the order of protection, a client gets one against them, they call us. I’ve represented a number of violations because, “He sent me a text message.” And it’s easy to manipulate that and to make it look and appear as if that person’s the one sending the text.
You can get yourself in a whole web of judicial proceedings as a result of the single order of protection.
Scott Michael Dunn: Let’s say I’m the respondent. I’m served an order of protection. The first thing I want to do if I think it’s not true is contact the person that filed the objections.
Steve Waterkotte: Regardless if it’s true or not true, call our office.
And you do it quickly. Too many folks wait. They don’t want to look at it because it’s too unpleasant perhaps. I hear that all the time. I just set it aside. I couldn’t look at it. I didn’t really care. She’s out of my life. He’s out of my life. And all of a sudden they look at it and their hearing date’s two days away. We get calls all the time, a day before, two days, three days before the hearing.
So you get served, whether it’s truthful, whether it’s a bunch of lies, you call us because then we can get you into our office. We can meet, discuss this and get to work, because these cases move quickly and, probably when you’re served, you’re going to have a hearing within a week to two weeks on that notice that you’ll get.
Chris Combs: By hearing, he means a full blown trial. Not with a jury. Go ahead –
Steve Waterkotte: Yeah, the hearing is to determine whether the full order is granted. Where we present evidence. And so there’s a lot to do in a little bit of the time. I always tell folks, “There’s a lot to do, but we do this so often that we have a system in place, and we can do that.”
But, you put yourself in a much better position by calling an attorney right away. Don’t get served, put it on the coffee table for a week, and then take a peek at it, and then it’s, “Hey, it’s 6 p.m., and I got court at 9 a m. the next day.” There’s some judges that won’t do continuances, and that’s a whole ‘nother deal.
So, you get served, you call us right away. We’ll get you in our office, walk you through this process, talk about those allegations, get ourselves prepared for the hearing, get our client prepared to testify. I always bring my client in to get their testimony, walk them through what my questions are going to be. I always give them tips and give them a little bit of a preview of what a cross examination will look like. Each party will be subjected to cross. Petitioner and respondent will both be subjected to cross examination.
It’s paramount when you walk into a courtroom for a hearing, for anything, it’s paramount that you are as prepared as you possibly can be. It’s paramount and critical that your client is as prepared as he or she can possibly be. They’re going to be more comfortable. They’re going to come off more [as] credible. When you are comfortable, you’re going to come off as more authentic, more genuine.
And it’s OK to be nervous. Everyone is nervous when they walk into court. It’s our job, my job as their lawyer, is that they are as prepared as they possibly can be. That they are ready for cross examination because I’ve walked them through what that’s going to look like.
Scott Michael Dunn: Is there a timeline of when you’re served, can I call the person that filed the order of protection at which point I’m served with it? Can I call them? The petitioner.
Steve Waterkotte: No. You’re going to have a temporary order.
Chris Combs: It’ll be an ex parte.
Steve Waterkotte: And they’re saying not to communicate. Not to communicate or contact.
Scott Michael Dunn: Even if you don’t look at it?
Steve Waterkotte: Yes. As soon as you’re served, you’re put on notice.
Scott Michael Dunn: As soon as it’s set in front of you.
Steve Waterkotte: Once that’s served to you, whether you looked at it, threw it away, burned it, you’re on notice and that’s your responsibility.
I get that a lot where folks want to call that person to resolve it. Once you’re served, to do what you just said, – maybe it’s your ex girlfriend. I want to just call her and say, “Come on, let’s just put all this aside. I’m really sorry now. I won’t have any more–.”
No. That’s a violation. You can be arrested for that. Whether you read it or not, it’s your responsibility. Because you were put on notice, you were officially served.
Chris Combs: And I’ll let Steve correct me if I’m wrong, but I think the majority, and I don’t know the percentage, are served as ex parte, which means they’ve only heard from one side. But that means it’s in effect as soon as you are served, until they hear from both parties at a hearing.
I don’t know what percentage are served with ex parte, it is effective immediately upon being served.
Steve Waterkotte: Correct. There’s two ways, without getting too into the weeds on this, you could have an ex parte order. That’s what Chris said, an immediate order saying no communication, no contact, can’t be within 500 or 1,000 ft.
Or, the court can simply issue you a summons to appear for the hearing and didn’t issue any temporary orders. In that case, you could technically call the petitioner. I wouldn’t suggest doing that, especially with pending litigation.
My advice, if you are served, whether it’s BS or whether it’s truthful, whether it’s by an ex parte or by some notice of hearing or summons, you call an attorney, get yourself ready for the hearing and start getting the wheels in motion on that.
Scott Michael Dunn: Let’s say I do make the call. What happens to me if I violate an order of protection?
Steve Waterkotte: Your first offense, it’s a class A misdemeanor. In many of these cases, they’ll issue a warrant because they take these things very seriously. The whole crux of that is that you are already violating a court’s order, a judge’s order. So despite it only being a misdemeanor, in many of these cases they will issue a warrant for an arrest. You can be arrested, taken in, you’ll have to argue the bond to get reduced.
Courts treat these things very seriously. Because, again, think about this, you’re spitting on an order of the court. The judge has ordered you to not do something, and you are doing it in direct violation of that judge’s order, that court’s order.
So they treat these things very seriously. The first two offenses are class A misdemeanors, and the third offense will be charged as a felony offense.
Scott Michael Dunn: I mean, often this is within the confines of a relationship. Let’s say it’s frivolous, she, he, they just do this all the time, she’s exaggerating. Do I really need an attorney to fight an order?
Steve Waterkotte: Absolutely. Without a doubt. Would I do my own surgery, if I needed a knee replacement? I wouldn’t do that myself, right? Would you walk into a courtroom with this much at stake, with no legal background, no legal training?
Now, can you do it? Yeah. I’m in these dockets all the time and I watch folks do it, and it’s cringe. You’re going, “Ugh, this poor guy or poor woman, they don’t know how to make correct objections.” You’re held to the same standard as an attorney. So when you walk in that courtroom, this isn’t Judge Judy, where anything goes.
Chris Combs: [Where] rules of evidence don’t apply.
I saw this today in court – just real quick, Steve, sorry to talk over you – but I was in court today and someone was representing themselves. And the judge said, “Well this is set for trial now.” And the person said, “I’m going to represent myself.”
The judge said, “You’re not going to understand the rules of evidence and how to get your evidence in. And if the other party’s attorney objects to something, and I sustain that objection, you’re not going to understand the nuances.”
Scott Michael Dunn: That’s terrifying.
Chris Combs: You can’t go at it alone. You just can’t.
Scott Michael Dunn: How can I get an order of protection dismissed?
Steve Waterkotte: We usually, as the respondent, don’t have that ability. There are some situations, there are some courts that allow us to file a motion to dismiss.
But, I always tell the respondent when they call us, our options are two fold, basically.
Number one, you either consent to this, which, they’re not calling me to consent. They could walk in the courtroom and sign a piece of paper saying, “No hearing. I agree with the order of protection,” right? That’s what a consent is. But there are two options. Basically consent or have a hearing.
Again, if they’re calling my office and they’re calling us for representation, usually they’re not consenting. There are a small percentage of cases where the evidence may be just so overwhelming that we would advise our client in those situations to consent and let’s try to mitigate this. We don’t want to have a hearing. Maybe there’s a criminal case at play because they’ve been charged with domestic assault, and we don’t want our client testifying.
So there are some situations in which we would advise our client to consent, but by and large, if they’re calling us and they’re hiring us, they’re not interested in a consent. They’re wanting to fight this and that’s what we do.
As far as the question of getting it dismissed, we don’t have that control. The petitioner does. They are the one who filed the order of protection. Only they can dismiss this. We have to be ready to walk in there. And I always tell our clients, “You hire us. This court date is two weeks from now. We’re gonna be ready to rock and roll. We’re gonna walk in there ready for a hearing. Ready to cross examine the petitioner, put on the testimony of our client, the respondent. And we’re gonna be ready for a hearing.
So we don’t necessarily control the dismissal. Petitioner does. And that happens from time to time. I’m allowed to talk with the petitioner. Sometimes I’m able to talk the petitioner into a dismissal. But at the end of the day, the petitioner controls that.
Scott Michael Dunn: Ah, interesting.
Chris Combs: Just quickly, there are a lot of strategies I’ve just seen him execute that I would have never thought of (and again, [that’s] why I don’t handle orders of protection).
You get served and that ex parte is in place. I’ve seen Steve negotiate where, “Let’s keep the ex parte in place for six months. If no issue, then would you dismiss?” So there’s all kinds of different strategies that Steve utilizes. Again, if you don’t do this day in and day out, you’re not going to know that’s even an option.
Scott Michael Dunn: Right.
How does an order of protection affect custody rights?
Steve Waterkotte: What we haven’t touched on yet is there’s two different kinds of orders of protection. There’s an adult versus adult, right? That’s you filing one versus me.
We also have child orders of protection. That is you filing on behalf of your child. So an adult would file, be the named petitioner filing on behalf of their child. Those are the ones that typically have custody consequences.
If there’s not a custodial order, there’s not an order for custody in place, that judge at the conclusion of the hearing could determine custody. Obviously if somebody is alleged and accused and proven to be somebody who has beat, abused, neglected a child, well that petitioner is probably going to get custody and whereas the respondent may only have supervised visits.
In the child order of protection context, in that case if there’s children at play, that’s where the custody comes in. A judge in the order of protection case can determine and order custody to one individual over the other.
Scott Michael Dunn: Seems very subjective.
Steve Waterkotte: It is. It is. The petitioner still has to prove their case and be the prevailing party to, in effect, get custody.
Chris Combs: It’s very technical, wouldn’t you agree?
Steve Waterkotte: Yes. It’s an area of law that a lot of folks – and you see this, it’s scary. You see this amongst attorneys too. That don’t do this, don’t handle these cases, but may take one on because a client that they’re handling a different matter for gets served with one. Or, “Hey, my neighbor, my kid’s friend,” and they come into the courtroom and they don’t know what the law is. They can’t define what stalking is versus harassment.
And that’s scary. You see a lot of lawyers that come in and just do maybe a case. And that’s scary, because how do you effectively defend one of these when you can’t even define what stalking or harassment are?
There’s different avenues certain people can pursue these under. Stalking versus harassment. Sgain, getting pretty technical, but that’s a whole ‘nother seminar on its own. But you’ll have lawyers that waltz into court and can’t define those two terms. Which is pretty scary. They’re defending somebody on one of these.
Scott Michael Dunn: Can I have an order of protection removed from my record?
Steve Waterkotte: You can’t.
Scott Michael Dunn: Never.
Steve Waterkotte: No. Currently there’s nothing in place right now. We get quite a few phone calls asking that because, “Hey, didn’t care about it when I was served. Didn’t care about that person.”
Four years down the road – and we get a handful of calls each week about this very issue. Now they went and applied for a job, or they want to drive the school bus, or they want to get a background check to coach their kids.
Chris Combs: Go on a field trip.
Steve Waterkotte: You can’t because of that order of protection. Even though it may not be valid, because typically they are going to be in place for one year. But even after that one year period is up, it still shows, it’s still a red flag that somebody was an abuser, was a stalker, was somebody harassing another person. So it’s a red flag.
There’s major consequences across the board on these things.
Scott Michael Dunn: What should I expect at a hearing for an order of protection?
Steve Waterkotte: Depending on the judge, they tend to be a little bit more informal. But that said, the full rules of evidence apply.
What I always tell our client, number one is behave appropriately. No demonstrative gestures, no shaking of the head, rolling your eyes or scoffing when you hear the other person testify. I drill that into the head.
You’re in a courtroom and there’s a sense of respect and decorum. I’ve won cases and lost cases where it was based solely on my client’s behavior, or vice versa. We’ve won them because that person was acting like a jerk, acting like an idiot in court and they [lost] their credibility. So that’s number one.
Number two is to be prepared. And we’re going to have you prepared. You’re going to be prepared to testify. You’re going to be prepared to stand up to cross examination. When we take on a case, our client will be prepared for that. It’s not only their testimony and their cross examination.
And then the client and I work collaboratively together as the hearing aid approaches to gather evidence. I usually get text messages. Sometimes Snapchats, emails, voicemails. Those tend to come into play in many of these cases. We are going to collect anything that we believe is going to be beneficial and helpful for our case and to rebut these allegations that are lodged against our client.
Chris Combs: And social media too.
Steve Waterkotte: Social media, a Facebook post, instagram stuff.
Scott Michael Dunn: What’s the difference between a restraining order and an order of protection?
Steve Waterkotte: There isn’t. The legal term is order of protection. What the public commonly knows them as is a restraining order. But there’s no difference. They are one and the same.
Scott Michael Dunn: Can I prove that an order of protection was made on false allegations?
Steve Waterkotte: Yeah. And we do that, like I said, through accumulating evidence and working collaboratively with our client.
I always tell our clients [that] I want anything that can discredit. Almost always the respondent’s saying, “This is a lie. This is embellished.” With technology in our society and the prevalence of phones, that’s why social media, the texts, the recordings come into play and why we collaboratively work with our client to collect anything that we think are going to discredit those allegations or prove [that] those allegations are false.
Chris Combs: I’ve been at the office and I’ve seen a stack of text messages this big get printed out. Steve goes through them painstakingly. It’s just what it takes.
Scott Michael Dunn: Wow.
What if the petitioner, if I were the petitioner and I just want to drop it, I just want to drop the order of protection?
Steve Waterkotte: You can. There’s a couple ways. A lot of times the petitioners just don’t show up to court. I’ve been there, appeared, we’re ready for a hearing, we show up, and the petitioner just doesn’t show up. And those are typically petitioners that know this process and use it and abuse it as well.
There’s times when a petitioner may hire a lawyer, they call me, we work out a resolution. That’s not entirely uncommon where they’ll dismiss kind of ased on our assurances. “Listen, I talked to my client. This thing woke him up or her up. Rest assured there’s gonna be no more issues.
Or I’ve had petitioners in cases of mine that just simply walk down to the court, walk in the courthouse, fill out a memo saying, “I changed my mind. I’m dismissing this.”
You see that in a lot of relationships. Maybe they kiss and make up. The girlfriend or boyfriend goes into the courthouse and says,” I don’t want to go through with this.”
It doesn’t take a whole lot and it can be done.
Scott Michael Dunn: During the period of an order of protection can I make modifications?
Steve Waterkotte: As the petitioner or respondent?
Scott Michael Dunn: Either one.
Steve Waterkotte: The respondent can request them. They typically aren’t going to be granted, unless there are some very compelling reasons. Sometimes in the situation of, “Hey, I want to go to my kid’s soccer game, but that lady who has an order of protection against me [is there].” We’re requesting that my client be allowed to be at that game or the school functions when they have a child in common. So respondents can make those requests under those kindsof compelling, unique circumstances.
Petitioners can do it as well, but rarely does a petitioner go in and request her own or his own order of protection to be modified. But [it] can be done.
Scott Michael Dunn: How does an order of Protection affect my job or my home?
Steve Waterkotte: Yeah, background checks. Every job is different. Of course, the higher you go up in society, the more thorough and extensive the background check. Background checks are different at 7-11 than they are at Boeing.
Chris Combs: But all this takes is a CaseNet search.
Steve Waterkotte: Correct. So that’s number one. Once you get a full order of protection granted, that’s all going to be on CaseNet.
But let’s say beyond the period of time that it’s in effect again, the higher you go up in society, the more thorough that background check is going to be. If you want to apply for Boeing, I’m sure they’re going to see that, “Hey, eight years ago, you had an order of protection against you, and let’s talk about that.” That’s going to raise red flags in terms of employment.
Jobs are too competitive these days to put yourself at that kind of a disadvantage, walking in with a red flag already. You better be one hell of a candidate to overcome that, right? These jobs are too competitive. There’s other employees or candidates, I should say, that may not have that red flag. That’s going to be the difference in getting that job, getting that promotion, getting that security clearance. That has an impact too, folks that have high security clearance for jobs.
I’ve represented folks in the army. I’ve represented professors, students, police officers even. I’ve represented almost every walk of life in these proceedings. It absolutely has an impact on employment.
Scott Michael Dunn: What about housing?
Steve Waterkotte: Housing, it can. You don’t hear it as often as employment. Landlords run checks, apartments run checks. Once again, it’s competitive. These apartments are full. They have other candidates. Why the hassle with this person when they’ve been labeled an abuser or stalker?
So it can absolutely. Again, we don’t hear it as often as the employment context. But it absolutely can have an impact, when the landlord’s running a check, a credit check, a background check and CaseNet check, and that thing pops up. “I’m not going to deal with that person. I’ll take this guy or gal, she doesn’t have any red flags.” Same thing.
Scott Michael Dunn: What do I do if I’m falsely accused of an order of protection?
Steve Waterkotte: Call us, so we can fight it. That’s what it takes.
These cases are kind of all or nothing. There’s not a middle ground, really. You can consent to it. And there’s a very, small percentage of cases where we do, or we advise our client.
But these are generally all or nothing cases. What I mean is that, “Hey, we’re going to hearing. Okay. Or they’re dismissing it,” which we don’t control that as the respondent. So if they don’t dismiss it, we have one option. Either consent or go to a hearing. And, if they’re calling us and we’re representing them, almost every single time we’re going to a hearing.
Scott Michael Dunn: Let’s say we’re going to the hearings. How do I prepare for that?
Steve Waterkotte: That’s through us. We’re working collaboratively. You hire me to handle your case. We’re working collaboratively together to get you prepared. Accumulating evidence, collecting evidence from you, that are gonna help rebut these allegations to help show that the petitioner is not credible. To help show that these allegations are false.
Scott Michael Dunn: You say most of the cases that you take on are respondents, correct?
Steve Waterkotte: Correct.
Scott Michael Dunn: Do you recommend a petitioner get an attorney as well?
Steve Waterkotte: Again, I think it’s always wise walking into a courtroom. I think you’re going to put yourself in a much better position.
For instance, I’ll use the converse of that, if I’m representing a respondent, and I’m going against a pro se petitioner, that just made my life a lot easier, right? I don’t have an attorney that knows the law, that knows how to lay the foundation for evidence, that knows how to object properly at what things that I may be doing or saying.
So if I’m going against Joe Smith, pro se, no lawyer, my job got a whole lot easier, right? Now if I know that there’s a skilled attorney. A reputable, good attorney that’s representing the petitioner, that’s going to make my job harder.
Again, you go into a courtroom and you’re not a lawyer and you don’t have formal legal training, you’re at a significant disadvantage versus walking in with a lawyer who knows what they’re doing, knows the law. You’re putting yourself in a much better position.
So even as a petitioner, and you may have been abused, stalked, harassed, sexually assaulted, it would still be wise because how do I get these pictures into evidence? How do I get this video into evidence? Those are technical evidentiary issues that we have been trained as lawyers to do.
It’s not simply, “Hey, here’s my phone.” Some judges might give you a little bit more latitude and do it, but it’s not worth the risk. Even petitioners, I would advise to get an attorney.
And we do represent petitioners from time to time, I should say, but probably 90 percent, 95 percent of what we do is on the respondent side. So I have represented petitioners. Those are the folks seeking to get an order of protection. And again, they’re at a significant advantage walking in with an attorney.
Scott Michael Dunn: How subjective, and the nuances. All this sounds terrifying for anyone either petitioning or responding to an order of protection and leaving all of that in the hands of a judge, if you don’t arm yourself with the right kind of protection, which is you guys.
There’s a reason that we have these conversations and every time we have these conversations, I always walk away thinking, man I just feel better. I’m not in a situation where I need to call about this. But boy, when I get there, if I get there when that moment occurs, I feel the safety net can be thrown. So it’s nice.
I appreciate you guys coming out to talk about this. This is a delicate subject. We’re grateful we had this conversation.
Steve Waterkotte: Absolutely. Enjoyed it.
If you need Missouri’s leading order of protection defense team to defend your rights and freedom, speak to one of our attorneys today at (314) 900-HELP or contact us online for a free case review.
