A New Jersey judge recently confronted an issue that courts have been avoiding for years: Are restraining orders constitutional? Accused criminals have "due process" and many other constitutional rights, but feminists have persuaded many judges to issue orders that restrain actions of non-criminals and punish them based on flimsy, unproved accusations.
These restraining orders are issued without the due process required for criminal prosecutions, yet they carry the threat of a prison sentence for anyone who violates them.
Anibal and Vivian Crespo were divorced and rearing their children in the same household when they had a fight, and Vivian asked for a restraining order. Anibal was not charged with any crime, but the judge issued the restraining order, which banned Anibal from his own house and thereby separated him from his children.
Anibal made several good arguments that the New Jersey Prevention of Domestic Violence Act is unconstitutional. Judge Francis B. Schultz rejected most of those arguments, but he cited a long line of cases holding that "clear and convincing evidence" is required in order to take away fundamental rights, such as a parent's right over the care and custody of his children.
Feminists are in an uproar about Judge Schultz's decision and would like the New Jersey Supreme Court to reverse it. Feminists want courts to uphold a woman's right to kick a man out of his home based on a woman's unverified accusations.
Family courts are notorious for issuing restraining orders based on one woman's unsupported request. The New Jersey Law Journal reported that an instructor taught judges to be merciless to husbands and fathers, saying, "Throw him out on the street, give him the clothes on his back, and tell him, 'See ya' around.' "
People have a better chance to prove their innocence in traffic court than when subjected to a restraining order. Too often, the order serves no legitimate purpose, but is just an easy way for one spouse to get revenge or the upper hand in a divorce or child custody dispute.
Once a restraining order is issued, it becomes nearly impossible for a father to retain custody or even get to see his own children. That is the result even though the alleged domestic violence, which doesn't have to be physical or proven, did not involve the children at all.
The U.S. Supreme Court recently agreed to hear another case, U.S. v. Hayes, to decide whether an old misdemeanor domestic violence conviction can bar a man from ever owning a gun. Everyone agrees that convicted felons should not have guns, but misdemeanors are minor offenses that usually carry no jail time.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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