MPOs

In at least one Virginia Juvenile & Domestic Relations Court, I have testified that imposing a Military Protective Order does not comply with the usual notions of Due Process, as can be found when a judge issues a Protective Order in Virginia. It’s important to understand that this may be the same in most civilian jurisdictions, and this understanding may empower you in your legal journey.

For example, in Virginia, you get the following due process rights.

(1) You have the right to be told of a court hearing before an independent judge or magistrate and to be present to present your arguments against a protective order.

(2) You have the right to a lawyer to help navigate the process.

(3) You can present evidence in documents or from witnesses against the allegations.

Here is how POs work in Virginia and similarly in other states.

Code of Virginia, Chapter 9.1. Protective Orders [https://law.lis.virginia.gov/vacodefull/title19.2/chapter9.1/

(Note: in several cases, I have represented a servicemember at such a hearing and been able to get discovery well before investigators or prosecutors.)

THE MILITARY DOES NOT PROVIDE ANY OF THESE BASIC RIGHTS.

I am not suggesting you violate an MPO to stay away from your minor children. But this is something you should seek legal help with. There are three cases of interest.

Ram v. Rubin, 118 F.3d 1306, 13010 (9th Cir. 1997).

This case differs from an MPO but has some helpful language.

The court says a parent has a constitutional right to the care and custody of his children and cannot be summarily deprived of that by being told that a protective order or removal may be coming and having the chance to have a hearing by an independent judge.

Two points of interest may be analogous to the military situation.

(1) Both persons in Ram were supervisors. I think commander or commanding officer—aren’t they “supervisors?”

(2) The allegations were at least two years old.

See Ram v. Rubin, 118 F.3d 1306, 1310-11 (9th Cir. 1997). Several courts have followed Ram’s thinking on the constitutional right. See, e.g., Kottmyer v. Maas, 436 F.3d 684, 690 (6th Cir. 2006).

The United States Supreme Court has entered the discussion with several cases.

The court has said that terminating the parent/child relationship must be done by giving the parents due process. That is because of the fundamental interest in the freedom of families to raise their children.

In addition, the court said that the standard to be applied is “clear and convincing” evidence that the deprivation of a parental right is necessary to protect the child’s welfare.

Santosky v. Kramer, 455 U.S. 745, 753-54 (1982) (Note that this case involved a civilian CPS organization.)

Rios v. Mabus, C.D. Cal, Case No.: CV 13-1937 ABC (June 11, 2013). In this case, the District Court granted an injunction against the Marine Corps imposing an MPO on Rios, which limited his visitation with his son. See also Mueller v. Auker, 700 F.3d 1180, 1186 (9th Cir. 2012), citing Troxel v. Granville, 530 U.S. 57, 65 (2000).

In this case, Rios asserted a violation of various constitutional rights and exhausted his remedies by seeking relief under various internal procedures and Article 138, UCMJ. Note: the plaintiff followed several avenues within the Marine Corps to contest the MPO. This use of the “system” is called exhaustion of remedies in legal jargon.

United States v. LTC D., Army General Court-Martial (2023).

In this Cave & Freeburg case, the military judge dismissed a charge of violating an MPO regarding contact with minor children.

Again, we are not saying you should violate the MPO. It would be best if you asked for legal advice first and potentially seek our assistance.