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An Order of Protection is an Order that either directs the defendant to stay away from you entirely and/or directs them to refrain from certain behavior if they do come around you.
Who can I get an Order of Protection against?
Many people believe you can get an Order of Protection against anyone, but this is not true; it only applies in certain circumstances. To get an Order of Protection, the Defendant, sometimes called the Aggressor must be:
· Someone whom you are married to or used to be married to;
· Someone whom you lives with you or used to live you;
· Someone with whom you have or had a child or children;
· Someone whom you date, used to date, or have had a sexual relationship with;
· Someone related to you by blood, adoption, or marriage;
· Someone who is a child of a person related to you by blood, adoption, or marriage;
· Someone who has stalked you (meaning the Defendant or Aggressor regularly sends unsolicited gifts; regularly sends unwanted or malicious phone calls, texts, or emails; does damage to your property; or commits or attempts to commit physical or sexual assault); or
· Someone who has sexually assaulted you.
This means you cannot get an Order of Protection against someone with whom you are in close proximity to, like a neighbor or a boss, unless they have also done or participated in one of the things listed above.
How do I get an Order of Protection?
Once you are certain the Defendant-Aggressor fits into one or more of the above categories, you must go to the Court in the County where you live and fill out a document called “Petition for Order of Protection.” You can do this personally, but to increase the likelihood of a judge granting you an Order of Protection, the best advice is to retain an Attorney who can help you with this process. It is also best to take action as soon as possible after the harmful or threatening incident occurred, because a court will deny a petition of the event occurred longer than one year ago from the date of the petition.
In your Petition for Order of Protection, you will be asked to describe the abuse that caused you to seek out the Order of Protection. This section is especially important, because you will need to include facts about the abuse, stalking, assault, or other acts that occurred that harmed you or placed you in fear of imminent harm of abuse.
Any act of outright harm is important to include, but you should also include any acts by the Defendant-Aggressor that placed you in fear of imminent harm. Imminent harm is harm that is likely to occur immediately, so acts of future harm generally will not be enough for a court to grant you your Order of Protection. Also, including facts about whether the Defendant-Aggressor has any firearms, or used any weapons such as firearms or knives during the incident should also be included in your petition.
Your petition should also include any other relevant circumstances between you and the Defendant-Aggressor. If you are married or have children with the Defendant-Aggressor, work with the Defendant-Aggressor or encounter them on a regular basis based on your general personal schedule, if there is an ongoing court proceeding between you and the Defendant-Aggressor such as a proceeding for Custody, or a pending Divorce action, the court will want to know that as well. Anything else that seems relevant to you should be included as well.
An Order of Protection can also be issued for the benefit of any children you have. If you seek to have your children protected in an Order of Protection as well as yourself, you need to include your children’s information, as well as any facts arising from the incident or event that placed you in fear of your children’s imminent harm as well. So, any harm to the children, as well as any threats made to the children should be included in the petition too.
Once you have filled out the entire petition, you need to take it back to the court and file it with the clerk. The appropriate Clerk would most likely be from the same place in which you got the petition. If you are unsure where that is, you could also contact an attorney to help you.
What happens after I file my Petition?
Immediately after filing your petition with the Clerk, there are generally, two things that might happen.
First, the Court (meaning, the Judge who handles Orders of Protection in your county) could issue a Temporary Order of Protection based solely on the information contained in the petition. This Temporary Order is called an “Ex Parte” Order of Protection. A court will only issue an Ex Parte Order of Protection when the court (i.e., the Judge in your county) finds “good cause” that the Ex Parte Order is necessary to prevent imminent harm to you or your children. This is the main reason why you should put in your petition as much relevant information as possible.
If the court does find “good cause,” the Ex Parte will be issued as immediately as possible, which can generally occur on the same day as the day you filed your petition, if not the following day (or the following Monday, if you filed your petition on a Friday). The Ex Parte Order of Protection is a temporary remedy, and is only active for about 15 days, until a hearing can be held on your case. The hearing will be discussed below.
Second, if the court does not find “good cause” that an Ex Parte is necessary to prevent imminent harm to you or your children, the court will deny your Petition for an Order of Protection. A court will do this if they find there is no immediate or present danger of abuse to you or your children based on the facts included in the Petition you filed. In the event that this occurs, DO NOT PANIC. Even if a court declines to issue an Ex Parte Order of Protection, they are still required to set a hearing for you to discuss the matter in front of the judge. The hearing must be set not more than 15 days after you filed your petition, and the hearing will be your opportunity to explain to the judge why they should issue an Order of Protection against the Defendant-Aggressor. This would also be a great time to get an attorney to assist you, because they can help put your case together before the hearing.
What happens at the Hearing?
Regardless of whether the court issued the Ex Parte Order of Protection, it is essential that you attend the hearing that the court sets on the matter in order to increase the chance that either (1) you can extend your protection after the Ex Parte Order expires, or (2) you can get a full-force Order of Protection. An Order of Protection generally lasts and remains in effect for one (1) year, but in special circumstances, can be set for a longer term.
Between the time you filed the Petition and the date of the hearing, both you and the Defendant-Aggressor must be served with papers requiring you both to appear at court for the hearing. If the Defendant-Aggressor has not been served by the date of the hearing, and if the Defendant-Aggressor is not in court on the day of the hearing, then to court cannot hear your case and the judge will have to set the hearing for another date so that the Defendant-Aggressor can be served and given the opportunity to appear.
If the Defendant-Aggressor has been served or does in fact show up at court for the hearing, then you will have your opportunity to explain why the court should grant you an Order of Protection. The most important thing for you to do in preparation for this hearing is to collect as much evidence as possible to prove either that you or your children were harmed, or that there is a threat of immediate harm to you and your children.
The kinds of evidence that are commonly used to prove harm or threat or harm include:
· Text messages or emails containing threatening language;
· Repetitious unwanted or malicious text messages, phone calls, or emails;
· Pictures of injuries that resulted from harm;
· Pictures of damages to property;
· Pictures or Videos of the Defendant-Aggressor that show stalking, harming, or threatening to harm you or your children;
· Medical records, if you sought treatment after being physical or sexually harmed;
· Police Reports, if police were called to the scene of an incident;
· Statements of the Officer who was called to the scene of the incident;
· Witnesses who saw or perceived any of the things listed above; and
· Any other evidence that tends to prove the Defendant-Aggressor acted in the way consistent with what you described in your initial petition.
At the hearing, you will be able to present your evidence, and you will be able to testify to the judge as to how this evidence caused you to feel the threat of imminent harm to yourself or your children. After hearing the evidence presented by both you and the Defendant-Aggressor, the Judge will decide whether or not to grant you an Order of Protection. The more evidence you can provide to the court for this hearing, the greater chance the judge will grant your Order of Protection.
What happens after the judge grants my Order of Protection?
If the judge grants your Order of Protection, it will likely take effect immediately because the judge will be able to serve the Order to the Defendant-Aggressor at the actual hearing. Once the Order is in effect, it can do several things, including requiring the Defendant-Aggressor to:
· Not contact you or your children through any means of communication;
· Stay away from you and your children, including staying away from your home and workplace;
· Cause intentional damage or interference with your property;
· Hurt or threaten to hurt any animal or pets you own;
· Relinquish primary custody of the children to you for the duration of the Order;
· Move out of the home, if you and the Defendant-Aggressor live at the same place;
· Surrender any firearms that the Defendant-Aggressor owns or possesses; and
· Abide by any other Orders the court issues.
Additionally, in the event that the Defendant-Aggressor violates the terms of your Order of Protection in any way, the Defendant-Aggressor can be held in Contempt of Court, and will usually be sent to jail for up to 10 days. However, if you want this to happen, you must call the police, inform them of the Order of Protection, and inform them that the Defendant-Aggressor has violated the Order. If the Police do not know the Defendant-Aggressor has violated the Order of Protection, they cannot take action.
If you have any questions about Orders of Protection, or would like the help of an attorney to help you through the process, call Held Law Firm today at (865) 637-6550 or visit our website at www.heldlawfirm.com.
