Protective Orders and How They Work

By Brian K. Tackett

This article will cover:

• Where to apply for a protective order
• What must be in the application
• How to get a temporary ex parte protective order
• What a protective order does

Purpose of a Protective Order

A protective order may be appropriate for a victim of family violence.  The purpose of a protective order is to provide the victim court ordered protection from a family member who is alleged to have committed an act of  violence.  A family member may be a person related by blood or marriage, a member of the household (e.g. roommate), or a person with whom there is a dating relationship.

Getting a Protective Order

In order to get a protective order, you must apply for one by filing it in the county in which the applicant (the alleged victim of family violence) lives, or the county in which the respondent (the person alleged to have committed family violence) lives. The application must state:

1. Name and county of residence of each applicant;
2. Name and county of residence of each person alleged to have committed family violence;
3. The relationships between the applicants and the person alleged to have committed family violence; and
4. A request for one or more protective orders.

If the application is filed before divorce or child custody case is filed or while a case is pending, the hearing on the protective order will not be delayed in order to accommodate other case. If the protective order was filed during a divorce, then it can be done in the county with jurisdiction over the divorce, or the county of residence of the applicant. If the application is filed after a divorce or child custody suit, then it will be in the court that rendered the final order on the family matter. Or, if filed in another county, will be filed in a court that has jurisdiction to hear the protective order.

Getting a Temporary Ex Parte Protective Order

A temporary ex parte protective order allows someone to get immediate protection when circumstances would put them in danger.  It requires a detailed description of the alleged family violence and the need for a protective order. If the court finds that there is a clear and present danger of family violence, then it may issue the temporary ex parte order. The court may grant the order without the knowledge or involvement of the person alleged to have committed the family violence. There is no hearing, and no opportunity for the respondent to be heard. The order cannot last longer than 20 days, although it may be extended for additional 20-day periods.  A respondent may be excluded from the residence if the applicant:

• Files a sworn affidavit providing a detailed description of the facts and circumstances requiring exclusion of the party from the residence; and
• Appears in person to testify at a temporary ex parte hearing to justify the issuance of the order without notice.

Furthermore, the court must find that:

1. The applicant requesting the excluding order lives at the residence or has lived there within 30 days before the date the application was filed;
2. Person to be excluded has within the 30 days before the date the application was filed committed family violence against a member of the household; and
3. There is a clear and present danger the person to be excluded is likely to commit family violence against a member of the household.

The temporary ex parte protective order will typically remain in place until the Court holds a hearing to decide if a final protective order will be put in place.

Final Hearing for the Protective Order

A final hearing is much like a trial.  Instead of a jury, the judge will hear the facts of the case and decide whether to grant the protective order.  The judge will hear witness testimony and review any evidence submitted. The evidence could include photos, audio recordings, video recordings, medical records, police records and numerous other items.

At the hearing, the judge will determine whether:

1. There has been family violence in the past; and
2. Family violence is likely to occur in the future.

If both of those are found to be true, then the court will grant the protective order.

What Can Be In the Order

In a protective order, the court may prohibit a party from:

1. Removing a child who is a member of the family from the possession of a person named in the order;
2. Interacting with or speaking to certain family members;
3. Going to or near the residence or place of employment or business of a person;
4. Going to or near the residence, child-care facility, or school a child protected under the order normally attends or in which the child normally lives;
5. Engaging in conduct specifically directed toward a person, including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person;
6. Possessing a firearm
7. Harming, threatening, or interfering with a pet;
8. Removing a child who is a member of the family from the jurisdiction of the court;
9. Transferring, encumbering, or otherwise disposing of property, other than in the ordinary course of business, that is mutually owned or leased by the parties; or
10. Removing a pet, or animal from the possession of a person named in the order.

The court may also:

1. Grant exclusive possession of a residence to a party, and direct one or more parties to vacate the residence;
2. Require the payment of child support;
3. Require the payment of spousal support for a party; or
4. Award to a party the use and possession of specified property that is community property or jointly owned or leased property, like a car.

A Magistrate’s Emergency Protective Order

There is a second type of protective order called an emergency protective order (EPO).  An EPO is available in the event of an actual arrest for family violence or stalking.  A magistrate, or municipal judge, may issue an EPO at the request of the victim, guardian of the victim, a peace officer, or district/county attorney.  Like a temporary ex parte protective order, an EPO may be issued without the knowledge or involvement of the person alleged to have committed family violence.  Usually, the EPO is issued while the accused sits in a jail cell.  An EPO is effective immediately.  An EPO will last for 31 to 61 days, though in cases that involve a deadly weapon, the minimum is 61 days and maximum is 91 days. Violation of an emergency protective order can result in a fine of up to $4,000, and up to 1 year in jail.

If You Have a Protective Order Pending Against You

First, and most importantly, FOLLOW THE EX PARTE ORDER. Judges are not keen on removing protective orders for people that refuse to obey them. If you fail to obey the ex parte order, the judge will conclude that family violence is likely to occur in the future and grant the final order.  Call us before that happens.

If You Need a Protective Order

Always keep the safety of you and your children as your top priority. Leave the house if necessary. Call 911 if necessary. Then contact us. The longer you wait, the more difficult it is to prove that family violence is likely to occur in the future.