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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.
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:
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.
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:
Furthermore, the court must find that:
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.
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:
If both of those are found to be true, then the court will grant the protective order.
In a protective order, the court may prohibit a party from:
The court may also:
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.
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.
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.