Family law cases, especially divorce and child custody cases, can be extremely emotional. Consequently, they often create a very turbulent time for the parties and their children. Everyone’s reactions to the distress of divorce differ, but most people experience some feelings of anger, frustration, anxiety and sadness. Be cautious of any warning signs of possible domestic violence from the other party or other family member. In the event of domestic violence, immediately contact your local police or county sheriff and report the incident.
Order of Protection
If the opposing party is violent, or threatens violence, towards you or your children, then a restraining order is necessary to keep him or her away. An Order of Protection from the court prevents the opposing party, or the defendant under the order, from contacting you and any other protected person at home or at work. This form of restraining order is available when there is an act of domestic violence or threat of domestic violence against a family member. “Family” is broadly interpreted for an Order of Protection and includes not only a spouse, previous spouse, or blood relative, but also someone you live with or lived with, the father or mother of your unborn child, or even someone in a current or past romantic relationship with you. Typically, an Order of Protection is granted “Ex Parte.”
Petitioning the Court for an Order of Protection
If you or your child is a victim of domestic violence, a Petition for an Order of Protection should be filed with the court. Getting the order does not take long, about an hour or so, at the court’s Order of Protection Office (the Family Violence Prevention Center). For an Order of Protection to issue, a family or intimate relationship is necessary between the victim and the defendant. The defendant’s date of birth and his or her address is also required. The petition must also state that domestic violence has occurred or may occur. When a domestic violence crime has occurred, then supporting evidence, dates, and testimony about the violent event is necessary for the court to issue the order. In making a decision, the judge may ask the petitioner for information on the following concerns:
- whether the defendant should be ordered to stay away from the victim’s workplace.
- whether the defendant should be prohibited from possessing a firearm.
- whether the defendant should be barred from the victim’s home.
- whether there are others who should be included in the protective order as “protected parties.”
The petitioner must swear that the information he or she provided in the petition is true and then sign the petition. Once the judge has signed the Order of Protection, the defendant must be served with the petition and the order. Law enforcement will serve the defendant for free (as well as an injunction against harassment). For a fee, a private process server may also serve the protective order on the defendant.
The Order of Protection is effective for one year, the year begins when the defendant is served. The victim, as well as any other protected persons, should keep the order on his or her person at all times. In the event that the defendant has not yet been served and shows up where the victim is, then the victim should call the police, and present the copy of the order to the officers when they arrive. The officer will then serve the order on the defendant. Should the defendant violate the Order of Protection after being served, then he or she has committed a crime and will be arrested. Importantly, even with an Order of Protection in effect, the victim needs to take every safety precaution possible and prudent under the circumstances.
What the Defendant Is Prohibited from Doing
An Order of Protection requires that the defendant stay away and remain out of contact with the victim. The order is valid for a year, unless modified or quashed (dismissed) by the court. The defendant can be arrested for violating the protective order, even when the victim initiated the contact. The court may also order that the defendant not possess, receive, or purchase firearms or ammunition, and order surrender of the same to law enforcement upon service of the protective order.
What You Can Do
You should keep a diary, journal, or log of events with dates and descriptions of any incidents involving potential or actual violence, threats of violence, stalking, cyberstalking, and harassment relevant to your case. You should journal specific examples of the other party’s poor judgment, alcohol or drug abuse, violent behavior, or threats of violence. Take notes of the conversations you have with the other party regarding the issues in your case. Additionally, you should keep copies of all email or written exchanges with the other party.
Domestic Violence Effect on Child Custody
The court will not award joint custody if there is a finding of significant domestic violence by one parent against the other. Reason being, the court considers evidence of domestic violence contrary to the best interests of the child. If the court finds that a parent has committed an act of domestic violence, that parent has the burden of proving to the court’s satisfaction that parenting time will not endanger the child or significantly impair the child’s emotional development. If the parent meets this burden to the court’s satisfaction, the court will place conditions on parenting time that best protect the child and the other parent from further harm.
Remember, if your safety or the safety of your children is at risk, call the police immediately. If you are in immediate danger, DIAL 911.