Restraining Orders With Only Claim of "Fear" Against Federal Case Law Which Trumps State Statutes and State Case Law
Blazel v. Bradley, 698 F.Supp. 756 (W.D.Wisc. 1988)(Statute permitting
issuance of ex parte temporary restraining order in domestic abuse action
threatened deprivation of property and liberty interests under due
The Federal Judge held that circumstances of domestic abuse cases are not
sufficiently unusual or extraordinary to justify ex parte temporary
restraining orders without due process predeprivation hearings; threat of
harm was less to general public then to private individuals; immediate
action was not required in all cases; and deprivation was initiated by a
Wisconsin statute permitting ex parte temporary restraining order in
domestic abuse action required victim to make showing of imminent danger.
Ex parte temporary restraining order that required husband to avoid his
home and children for seven days deprived him of property and liberty
without due process, where wife's petition contained no allegations of
risk or immediate harm, but only alleged that husband had assaulted her
two weeks earlier and there had been previous assaults.
The statute's requirement of a showing of physical violence encompasses a
requirement that the violence be shown to be imminent.
(My note): The New Jersey PDVA requires a showing of physical harm,
battering or physical violence. Harassment does not constitute any of
these acts and should be stricken from the domestic violence statutes.