Understanding Protective Orders and Burden of Proof
Let’s talk about protective orders. What is the burden of proof? My name is Carl Birkhead. I’m a Tulsa protective order attorney with Wirth Law Office in Tulsa, Oklahoma. I’ve been practicing family and criminal law for almost eight years now, and I want to help you make law easy by just talking a little bit about what you need to do to be able to prevail in a protective order case.
The Challenge of Proving Protective Order Cases
I actually had this come up recently where I had a client who was wanting to seek a protective order, and I genuinely believe that she was entitled to one. Here’s the problem, though. The facts and the allegations were the type of facts that it was almost impossible to prove. There was no actual forensic evidence. There was no bruising, no marks, no DNA, and no medical records from hospital visits.
I mean, there was nothing other than just my client saying that it happened. And obviously, the other side said, no, it didn’t. So it came down, I mean, in those types of situations, it kind of comes down to the credibility of the witnesses and who’s more believable. But here’s the problem. The burden of proof in these situations is on the plaintiff. It’s on the person who’s seeking a protective order.
The Complexity of He-Said-She-Said Cases
It doesn’t help in this particular instance that the allegations that my client had, which I believe were valid, were the type of allegations that could have resulted in charges being filed against the defendant, and no charges have been filed. So that didn’t help either. So in the absence of charges being filed, in the absence of, if it involves kids, in the absence of DHS being involved in something like that, if it’s truly just a he-said-she-said, that’s never going to be enough to get a protective order granted, or in most cases, it’s not.
Let’s say now and then maybe you got someone who’s just absolutely, insanely credible on one side, and someone who just has zero credibility on the other side, then maybe just, you know, you say it happened, they say it didn’t, maybe that’s enough to get you there. Unfortunately, in this case, it wasn’t. The court stated that the disclosure was very credible, had no reason to disbelieve it, but equally, the court found the denial credible and had no reason to disbelieve it.
Finding the Right Proof
So if you believe the disclosure, but you also believe the denial, you know that someone’s lying. In that instance, the court just cannot grant the protective order. There’s not enough there for that. So if you’re looking to get a protective order, you want to make sure that you’re doing everything that you can to get enough evidence to prove that it happened, not just say that it happened, but to prove it.
Ultimately, in the court of law, it doesn’t matter what happened; it matters if you can prove it. If you have questions about this, or if you’re trying to get a protective order, definitely give me a call. I want to sit down with you, I want to go through the facts of your case, I want to see what evidence you have, and figure out what we can do to help. My name is Carl Birkhead. I’m a Tulsa criminal defense attorney with Wirth Law Office, and I want to help you make law easy.
Schedule a Low-Cost Initial Strategy Session
If you are seeking guidance on protective orders or any other legal concerns, I invite you to contact me for a low-cost initial strategy session. Reach out by calling 918-879-1681, and let’s work together to address your legal challenges.
