Citation

Stark DP, Choplin JM. Wis. J. Law Gend. Soc. 2017; 32(1): 13-64.

Copyright

(Copyright © 2017, University of Wisconsin Law School)

DOI

10.2139/ssrn.2842837

PMID

unavailable

Abstract

One of the most fundamental norms in our judicial system is that courts need to hear from both parties on a legal issue before granting any form of legal relief. Nevertheless, rules of civil procedure permit a vulnerable party to appear in court ex parte (without prior notice to the other party), to obtain a temporary order prohibiting a wrongful action about to be taken that will cause irreparable harm. A classic example of this is when a person runs into court because a demolition crew is starting to set up to demolish a building they have built and claim to own. Due to the time it would take to provide prior notice of the hearing for the requested relief to the party responsible for this action, the harm to be avoided would likely take place. Consequently, in this instance, a court would be willing to hold an ex parte hearing to determine whether to grant a temporary restraining order.3 This Article focuses on ex parte orders in the context of domestic violence. It is easy to see the potential imminent harm--to see the "wrecking ball in motion"--in cases where demolition crews are starting to demolish buildings, but what happens in domestic violence cases when the court is unable to see the imminent harm--the "wrecking ball in motion"--or how giving notice can set-off that wrecking ball into motion? In the context of domestic violence, ex parte orders of protection are intended to protect survivors of domestic violence from further acts of abuse, including violence, when they attempt to safely leave an abusive intimate partner. This Article explores the critical question of the extent to which judges "see the wrecking ball in motion" when they make their rulings in this context. We contend that when judges do not understand the realities of domestic violence, in particular, the counter-intuitive aspects of domestic violence, or when a victim acts in a manner against a held gender stereotype, the judges are much less likely to see the "wrecking ball in motion" and are more likely to deny ex parte orders of protection that they should be granting...

Language: en