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Petition for Relief from Abuse and Protective Orders
Prior to filing for a claim of domestic violence, certain prerequisites must be met by the victim to obtain relief. Once the threshold requirements are met, a petition can be filed alleging abuse. The petition must be under oath and include:
1. The history of abuse, including previous injuries resulting from the abuse,
2. Any previous or pending actions between the parties,
3. The whereabouts of the abuser, if known,
4. The financial resources of the abuser if financial relief is being requested, and
5. The whereabouts of a child or vulnerable adult in the case of abuse against either.
A completed petition can be filed with the Clerk of the Circuit Court or District Court, or the Court Commissioner when neither the Office of the Clerk of the Circuit Court or the District Court is open for business. All documents that are filed in a domestic violence claim can exclude contact information of the person eligible for relief if there is evidence that disclosure of their address would make them vulnerable to further abuse, or would reveal the confidential address of a domestic violence shelter. There are three types of relief available to petitioners in the form of protective orders:
1. Interim Protective Orders
2. TemporaryProtectiveOrders
3. The Final Protective Order Hearing
Interim Protective Orders
An interim protective order is granted by a Court Commissioner when there is reason to believe that the person eligible for relief has been abused and a protective order must be granted for his or her protection. The interim protective order may grant to the petitioner an order that the abuser:
1. Refrain from further abuse or threats of abuse
2. Refrain from contacting, attempting to contact, or harassing persons eligible for relief
3. Refrain from entering an eligible person’s residence (i.e., their yard, grounds, outbuildings, and common areas surrounding their residence)
4. Stay away from an eligible person’s work, school, or temporary residence,
5. Remain away from the residence of an eligible person’s family
6. Vacate the home where the eligible person and abuser are living together, award custody and/or temporary use and possession of the home to the victim
7. In cases of child abuse, award temporary custody of the minor child to the eligible person
8. In a case of adult abuse, award temporary use and possession of the home to the adult living in the home
Once an interim protective order is granted, a temporary protective order (TPO) hearing will be held on the first or second day on which a District Court judge is sitting after issuance of the interim protective order. A petitioner must attend the temporary protective order hearing otherwise the order will be dismissed. If the abuser fails to show up to the hearing, it will continue in his or her absence.
Temporary Protective Orders
A judge will grant a temporary protective order where it is reasonable to believe that abuse has occurred. Whether there is reasonable belief is based on the facts of every case, but generally it is not a very difficult standard to meet. When granted, aTPO will generally order the abuser to:
1. Refrain from further abuse or threats of abuse
2. Refrain from contacting, attempting to contact, or harassing eligible persons
3. Refrain from entering the residence of an eligible person which includes their yard, grounds, outbuildings, and common areas surrounding the residence
4. Remain away from an eligible person’s work, school, or temporary residence
5. Remain away from a child care provider who is taking care of an eligible person’s child
6. Vacate the home where the abuser and the person eligible for relief are living together. Where the abuse is against a child or vulnerable adult, use and possession will be given to an adult in the home. Where the abuse is toward a cohabitant or other nonspouse person eligible for relief, a vacate and use and possession order will be granted to him or her where (1) his or her name is on the lease or deed or (2) he or she has lived in the home with the abuser for at least 90 days of the last year.
7. A final form of relief awarded to a person eligible for relief under a TPO is to award temporary custody of minor children of the abuser and the person eligible for relief. This relief does not apply to step-children or children of either person’s prior relationship.
A TPO will last for no more than 7 days after the abuser has received the TPO from a law enforcement officer. At the conclusion of that week, a final protective order hearing will be held in which the victim may receive final relief from the alleged abuser.
The Final Protective Order Hearing
A final protective order hearing determines whether a petitioner is eligible for protection from the alleged abuser for generally up to twelve months but, in certain instances, up to eighteen months. The hearing can only occur after the alleged abuser has received notice of the hearing and the possibility of a protective order being placed against him or her. During the hearing, convincing a court to issue a final protective order can be difficult because of the high level of proof required, but it is never impossible.
The relief available from a final protective order is more expansive than that available from an interim or temporary protective order. The final protective order provides the following forms of relief against the abuser:
1. Injunctive Relief
(a) Refrain from further abuse or threat of abuse
(b) Refrain from contacting, attempting to contact, or harassing persons eligible for relief
(c) Refrain from entering the residence of a person eligible for relief
(d) Order the abuser to stay away from work, school, or temporary residence of a person eligible for relief, or other family member’s home.
(e) Order the abuser to stay away from a child care provider of the person eligible for relief when the child is in the care of the childcare provider
(f) Order the abuser to vacate the home for up to one year and award use and possession of the home to the petitioner where the abuser and victim were living in the same home. A cohabitant can only receive a vacate and a use and possession order where their name is on the lease or deed or has resided in the home for at least 90 days of the past year
2. Child custody, support, and visitation
(a) Temporary custody of minor children of the parties
(b) Visitation based on the welfare of the child and the safety of the person eligible for relief.
(c) Temporary “emergency family maintenance” to spouse and/or children, including a earnings withholding order
3. Miscellaneous Relief
(a) Temporary use and possession of a jointly owned vehicle if necessary for petitioner’s employment or care for children
(b) Counseling for the eligible person or the abuser
(c) Order the abuser to surrender to law enforcement officers any firearms in his or her possession through the duration of the protective order
(d) Order the abuser to pay all filing fees and costs
Failure to comply with any type of protective order – interim, temporary, or final – can result in criminal prosecution and imprisonment or a fine or both. Modification, then, is a possible solution to avoiding criminal charges if compliance with the order will be difficult. Modifications of protective orders can, and do, occur. When a request for a modification is made, a hearing will take place usually in the court where the protective order was granted. A hearing generally occurs only after notice of a hearing is given to the person eligible for relief and the abuser.
Further Information on Domestic Violence:
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