An Example of an "Abuse of Process" in a Recent Custody Case

I want to talk with you about abuse of process and give you an example of what an abuse of process is so you don’t do it in your custody case. I represent a father and he and mother share 3 children in common. Several months ago mother got an order of protection also known as a restraining order on father. Although the judge did grant the mother the order of protection restraining father from having contact with her, the judge declined to put the 3 children on the order of protection. My client claimed the allegations were not valid allegations and so we ordered a hearing to contest it.

My client, the father, said that the allegations were not valid allegations and he wanted to contest the order of protection.   He and I ordered a hearing on that order of protection and we actually prevailed so the order of protection was dismissed. It then came as a shock to me and my client when he was served, very shortly thereafter, with another order of protection.

The second order of protection was based on the same allegations that the mother had put in the first order of protection. As a matter of fact, in that second order of protection, the mother went to another court, wrote down the same facts as she put in the first order of protection and got that second order of protection within hours of the first order of protection being dismissed.

Chances are because the order of protection in the first case had just been dismissed it wasn’t in the court system so that second judge did not know about it. Mother failed to inform the second judge about the fact that she had just been in court on an order of protection alleging the same facts, so she got that second order of protection.   This was pretty upsetting to my client and to me because this is what you call an ‘abuse of process’.   Mother is abusing the process and she is trying to gain and advantage by abusing the process. She’s trying to go to different judges to get the results that she wants, although one judge has already ruled on the issue.

Essentially my client and I of course requested a second hearing on the restraining order and again it was dismissed.   In the meantime, though we had gone to the judge who’s handling the family court matter and the judge who is handling the family case is different from the judge who handles the order of protection. The judge handing the family court matter was very upset with Mother.   He told her if what Father and his attorney are saying is true, then I’m going to award attorney’s fees to them for having to go to court and fight this frivolus order of protection.

Abuse of process can happen not just in this way but in one of many ways. If you have a case you must play by the rules. You can’t point fingers if you have dirty hands. If you stay on the up and up you are going to be right in the eyes of the judge.   It does not mean you are always going to win, but at least the judge can’t slap your hand for bad behavior.