THE OKLAHOMA BAR JOURNAL 26 | FEBRUARY 2026 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. abuse nevertheless applies in family and domestic matters too.25 Even so, it is reasonable to assume that S.B. 607’s civil codification and incorporation of a criminal definition of domestic abuse may lead some practitioners astray when applying S.B. 607 and the correct burden of proof, especially in family and domestic matters.26 This assumption is further supported by the fact that on multiple occasions, the Oklahoma Court of Civil Appeals (COCA) has thought it necessary to clarify the nature and character of the Protection from Domestic Abuse Act, the act from which S.B. 607 incorporates the definition of domestic abuse and the evidentiary standard applicable to protective order matters.27 COCA has made it clear that the applicant in a protective order matter need not prove their domestic abuse allegation(s) beyond a reasonable doubt nor by clear and convincing evidence. It follows then that the applicant in such a matter needs only to prove their domestic abuse allegation(s) by a preponderance of the evidence. First, in Marquette, COCA rejected an argument that the Protection from Domestic Abuse Act is criminal because it is codified in the title governing criminal procedure.28 In rejecting this argument, COCA declined to extend criminal protections, namely that the appellee had to prove her domestic abuse allegation(s) beyond a reasonable doubt, to the appellant.29 Further, COCA specifically found that a protective order, “the remedy provided [by the Protection from Domestic Abuse Act,] is civil, not criminal, in nature.”30 Then, in O’Brien v. Berry, COCA found that “nothing in the Protection from Domestic Abuse Act, or in any case interpreting the Act,” imposes the clear and convincing burden of proof on the protective order applicant.31 Since the protective order applicant need only prove their domestic abuse allegation by a preponderance of the evidence, why should the same allegation be automatically admissible against the defendant in their domestic abuse prosecution, which requires the state to prove the very same allegation beyond a reasonable doubt? Essentially, the applicant has already done the prosecution’s job for it. The domestic abuse allegation in a protective order matter should not be automatically admissible against the defendant in their domestic abuse prosecution because the burden for proving domestic abuse becomes blurred. S.B. 607, as codified, undergirds this blurring, which may lead to improper or inconsistent application of both the statute and the correct burden of proof. Improper or inconsistent application of either alone would give cause for concern, so improper or inconsistent application of both is greatly concerning. Recourse (or Lack Thereof) The fourth and final constitutional concern S.B. 607 raises is that it lacks recourse for the defendant, especially when protective orders are dismissed or denied or are used in family and domestic matters for any purpose other than their intended purpose. Our courts have construed the purpose of the Protection from Domestic Abuse Act and the purpose of protective orders.32 The Protection from Domestic Abuse Act’s purpose is “preventative,”33 and “to effectuate [this] purpose, the Act provides for court[s] to issue civil protection orders to prevent violence before it happens.”34 The Oklahoma Supreme Court has explicitly admonished that the Protection from Domestic Abuse Act, and a protective order issued under it, “should [never] ... be used to harass or for [any] other reason than its intended purpose.”35 When protective orders are used in family and domestic matters for their intended purpose, they “are a way for a paper trail to exist to show the court the history of abuse” between the parties.36 But the unfortunate reality is that protective orders are frequently misused in family and domestic matters, and a fair number are dismissed before hearing, denied by the court or incorporated into the dissolution proceeding. The consequences of such misuse cannot be overstated. Indeed, “a vindictive or an unwarranted issuance of a protective order can have irreversible consequences for a defendant.”37 And no consequence is as devastating as the wrongful denial of a parent’s rightful access to their minor child(ren). This wrongful denial is often effectuated through 43 O.S. §109.3, which provides, “In every case involving the custody of, guardianship of or visitation with a child, the court shall consider evidence of domestic abuse.” This statute further provides: If the occurrence of domestic abuse ... is established by a preponderance of the evidence, there shall be a rebuttable presumption that it is not in the best interest of the child to have custody, guardianship, or unsupervised visitation granted to the person against whom domestic abuse ... has been established.38
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