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AMENDMENTS TO THE KANSAS PROTECTION FROM ABUSE ACT (2001) 2001 House
Judiciary Committee 2001-2002
Kansas Legislative Session TESTIMONY
OF RONALD W. NELSON Opposition to Proposed Amendments
to the Mr. Chairman and Members of the Committee: Good morning. My name is Ronald W. Nelson. My practice is
in Overland Park, Kansas. My law practice is devoted to domestic relations
law, including divorce, parentage, child custody, and other areas of domestic
relations law, as both an original action and post decree. My clientele is evenly
split between representation of men and women. I am a member of the American
Bar Association Family Law Section, serving on the Custody Committee, the
Kansas Bar Association, and I am a Fellow in the American Academy of
Matrimonial Lawyers. I am testifying today against House Substitute for House
Bill 2077, which seeks to amend the Kansas Protection from Abuse Act in various
ways. The Kansas Bar Association opposes this bill in its current form for a
number of reasons. Although it must be stressed that protection of the
victims of abuse is high priority of the bar, the statutory amendments this
bill seeks to enact are not the way in which those matters should be handled.
There are three ways in which we believe this bill inappropriate: First, Section 1 of the Bill
provides that all orders issued under the protection from abuse act shall be
entered on the national criminal information center protection order file.
This amendment is presumably so that law enforcement officials both inside
and outside the state of Kansas know when a protection from abuse order is
issued and they are better able to verify claims that a protection order has
been issued and protect anyone who seeks their assistance in enforcing that
order. However, although this section has a laudable purpose, we oppose this
section because it is too broad and provides the potential for entry of
incorrect records on the system. The section provides that all
orders for protection be entered. This includes orders that are granted ex
parte without presentation of both sides of the issue to a judge (which
includes both “emergency orders” and “temporary orders”) and provides no
means by which any of this information may be deleted from the system if any
orders issued are later determined improperly granted. This also includes
orders for protection, which have been agreed to by the parties although
there is no actual determination of abuse, or the need for any such
protection than the agreement of the parties. It should be noted that these
kinds of orders are not recognized as valid orders under provisions of the
federal Violence Against Women Act (VAWA). It should be noted that of the two
appellate court cases decided in Kansas which interpret the Kansas Protection
from Abuse statute, although a temporary order for protection from abuse was
entered in both cases, the appellate courts ultimately decided that
there was no basis for coverage of the acts alleged in those cases, and that
no order should have issued. Inclusion of temporary or emergency
orders does not provide any due process or other protections to the person
against whom any such case may be filed and inserts potentially wrong and
damaging information into a national database. Additionally, this section
provides that even the orders of “another jurisdiction which are entitled to
full faith and credit in Kansas” shall be entered by the sheriff of the
county on the national criminal information center protection order file.
This provision also is fraught with problems. There is no way a sheriff can
know what orders of another jurisdiction are entitled to “full faith and
credit.” Such a determination requires court intervention and determination. This section, in effect, provides
for a significant increase in information being placed in the national
criminal information center database which is or may be erroneous subjecting
innocent persons to serious consequences. The fact that records may be
“cleared as an active record” if a court determines that matter improperly
filed, does nothing to erase the harm that may have occurred. Section 2. This section inserts
into the law troubling and ambiguous terms. The inserted language not only
inserts ambiguous and difficult to understand language, but also unduly
expands the law and provides a very high opportunity for misuse of the system
for filing of protection from abuse actions. It is well known among the bench
and bar that a significant minority of people who file petitions for
protection from abuse under the current statute have other motivations than
protection of themselves from physical or emotional abuse. Protection from
Abuse actions are often used by a spurned lover or spouse in an attempt to
gain advantage in a parentage case, in a divorce, or in other domestic
relations matters. The protection from abuse action is known as a powerful
weapon in the use against abusers. The Act provides a speedy remedy to remove
an abuser from the parties’ household, to obtain restraining orders against
that person and to protect an abused person from possible injury, threat or
death. The act also provides this same remedy against a person who has never
committed any act for which remedy may ultimately lie under the act. Many
attorneys have handled cases, and many judges hear cases, in which a
protection action is filed for no other reason than that it there is no
charge for the filing, the person filing the action wants immediate action, and
that person can think of no more effective way of dealing with conflict than
filing a protection action. Because of the strength of this law, and its
potential for misuse itself, there is a need for balance in considering any
changes to the law or expansion of the people it protects. There is a reason the legislature
originally limited the beneficiaries of the protection from abuse act to
persons who were married to each other, who were living together or who had a
child of their relationship – that is because there is a close personal
relationship which has caused the parties to have a regular, consistent and
continuing contact with each other. Those persons have formed an attachment
which, when disrupted by conflict, may very easily spill over into violence.
Because of the continuing need for contact between those parties, criminal
prosecution may not be desirable and some kind of contact is almost
inevitable. Some kind of temporary order needs to be available that those
people can rely upon in those situations that comes short of criminal
allegations. These parties are going to have to have some contact again –
whether it is because of the need for a divorce, exchange of property in a
non-marital relationship, exchange of a child at regular intervals, or some
other similar matter. As noted by our Supreme Court in Paida vs. Leach, 260
Kan. 292 (1996), “the principal purpose of the legislation was to provide
relief for battered spouses or cohabitants.” The inclusion of a “dating
relationship” as a sufficient relationship for the filing of a protection
from abuse action dilutes the original purpose of the Act and inserts
substantial potential for misuse. There are also significant
problems with the language used in the section regarding those persons to be protected.
The section extends protection to “persons who are or have been in a dating
relationship.” The section provides some attempted guidance to the courts on
what to consider in determining whether a relationship “exists or existed.”
Those “guides” are that the court should review (1) the nature of the
relationship; (2) the length of time the relationship has existed; (3) the
frequency of interaction between the parties; and (4) the time since the
relationship ended. However, the section itself provides that anyone can
obtain an order against a person whom he or she “had a social relationship of
a romantic nature consisting of one or more dates.” Thus, although the
court is directed to look at the nature of the relationship, the length of
time the relationship has existed, and the frequency of interaction, the
section itself specifies that only one “date” is needed to trigger the Act. Further, the court is to “presume”
a dating relationship existed if the plaintiff verifies that fact. What is a
date? What is a dating relationship? Is an outing to the prom a date? Even if
the two go together but never see each other at the prom and don’t end up
going home together? Is a chance meeting and catching a soda a “date?” Is it
a “date” if a boy and girl go with a large group of large friends to Pizza
Hut after a high school basketball game and sit next to each other, making
small talk and wishing for more? Under this bill, it is if one person
says it is and wants an order for protection from abuse issued. Not only that, but an order for
protection from abuse can be filed by either of those two parties, at anytime
after that one event – no matter what the context – not matter what the
impetus, no matter how long after and no matter whether the parties ever
again have a “date.” By merely having had contact that one of those
two chooses to characterize as “romantic” and as a “date” that party can unleash
the power of the protection from abuse act. This is so even though these
parties may never again have contact and even though these parties may never
again have reason for contact (unlike the situation in which the parties to
the action have a minor child). What then is the remedy for the
kind of improper actions sought to be addressed? Those remedies already
exist. First, all the acts that are sought to be addressed by this
legislation as to people who have been in a “dating relationship” are covered
by existing criminal laws. Undesirable touching, threatened or actual injury
to another is covered by assault or battery laws. Sexual contact with a minor
is covered by statutory rape, indecent exposure and indecent liberties
statutes. Additionally, the Kansas appellate courts have already determined
that in appropriate cases, the district courts may use their injunction powers
to protect unrelated persons from continuing harassment. Sampel v.
Balberni, 20 Kan.App.2d 527 (1995). I,
therefore, urge that this bill not be recommended for passage.
___________________________________ Ronald W. Nelson Suite 117; 11900 West 87th
Street Parkway Lenexa, Kansas 66215-4715 Telephone: (913) 312-2500 Email: ron@ronaldnelsonlaw.com |
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