The High Price of Restraining Orders

According to Michael McCormick, executive director of the American Coalition for Fathers and Children, 2010 should be another bumper year for temporary restraining orders, with 2 million to 3 million likely to be issued. Carrying a cost of roughly $2,000 apiece, this will ultimately cost taxpayers at least $4 billion.

Over the past few years, temporary restraining orders have become the tool of choice for dealing with family disputes. Designed to protect abused spouses or cohabitants, restraining orders generally require the abuser to keep a specific distance from his or her family members and often accompany eviction from a shared home.

The Joke's on Letterman, and Us

The ultimate poster child for restraining-order reform is David Letterman. In December 2005, New Mexico resident Colleen Nestler requested a restraining order against the late-night host, accusing him of mental cruelty and blaming him for her bankruptcy and sleep deprivation. Nestler charged that Letterman -- along with purported accomplices Kelsey Grammer, Kathy Lee Gifford, and Regis Philbin -- had alternately wooed and rejected her with coded messages that he sent through the TV.

Judge Daniel Sanchez quickly approved the order but overturned it after Letterman's lawyers confronted him.

The Nestler-Letterman case seems to be an outrageous example of such frivolous injunctions, but it highlights several problems. Letterman was not notified of the hearing and was not present for it, so he couldn't present evidence on his own behalf -- an apparent violation of due process that let Nestler set a complex, expensive legal operation into motion.

Further, Letterman's ability as a wealthy celebrity to fight the restraining order wasted more valuable court time and money, but questionable restraining orders often go uncontested by defendants who can't afford legal representation. Restraining orders are issued in civil court, so defendants can't get free legal representation, which saves taxpayers money -- at the cost of justice.

More Than Protection

Restraining orders were originally intended to protect cohabitants against physical attack, but in many states, they've moved beyond that purpose. In New Jersey, temporary domestic violence restraining orders don't require a filing fee and can be issued to protect against "mental or emotional harm."

If a complainant could get a restraining order based entirely upon an unsupported allegation of verbal abuse, the defendant might then be forced to find a new home, explain the restraining order to an employer, and try to get it removed from his or her record. Meanwhile, the community is stuck with the cost of enacting and enforcing the order.

It was very easy for Nestler to get a restraining order on Letterman, and she offered no evidence to suggest that he endangered her. And New Mexico has one of the stricter systems in the U.S. -- a complainant must explicitly detail the harm that he or she has received, get a notary to seal the complaint, and pay a $122 fee -- proving that frivolous injunctions can surface even where laws are tougher.

Pennsylvania has a strict definition of abuse and requires petitioners list specific incidents of attack or intimidation to get a Protection From Abuse order. But more than 53% of the state's 38,544 temporary PFAs issued in 2008 were withdrawn or dismissed. At a price tag of $2,000 apiece, that stuck Pennsylvania taxpayers with costs of more than $41 million.

Many Orders Frivolous

When it comes to reporting on restraining orders, Pennsylvania is one of the most transparent states. Part of the problem with determining the actual number lies in the fact that many states don't publish their statistics, so it's impossible to know how many injunctions are granted in the U.S. every year. Watchdog organization Radar Services echoes McCormick's estimate of 3 million per year. Many of these may be frivolous, if Pennsylvania's statistics are any indication.

It's hardly surprising that restraining orders have become the preferred response to domestic disputes, given how easy it is to issue them. But their abuse comes at a considerable financial and social cost, both to society and to families that leap toward legal separation with a single call to the police.