A party that is a spouse or a domestic partner may obtain a Cohabitant Abuse Protective Order if the other spouse or domestic partner has been the victim or physical harm or domestic violence or where a substantial likelihood of abuse or domestic violence exists. The first step in the protective order process is obtaining an “Ex Parte” Protective order. This occurs when the party seeking protective requests that the Court enter a protective order without any input from the other party. If a Court finds that enough evidence exists to enter an Ex Parte protective order, it will be entered by the Court and served by law enforcement on the other party. Once a person against whom a protective order is served, that person must leave the home and is prohibited from contacting or coming near the requesting party. Protective orders also often contain provisions limiting the person against whom the order is entered from coming to certain places such as the requesting party’s place of employment, car or church. Protective orders may also limit a person’s ability to possess weapons, use alcohol or drugs, or contact the parties’ children.
After a party is served with a protective order, a hearing will be held within fourteen (14) days before a family court commissioner to determine if sufficient evidence exists for entry of a permanent protective order. Both parties are required to appear for the hearing and present evidence supporting their position. If a party is served with a protective order and fails to appear for the hearing, a permanent protective order is usually entered by default. If sufficient evidence exists for the entry of a permanent protective order, a permanent protective order (in effect for a minimum of two years) will be entered. The commissioner may modify the Ex Parte protective order, especially where necessary if the parties are also engaged in a divorce action. If insufficient evidence exists for the entry of a Protective Order, the Ex Parte Protective Order will be dismissed.
Parties involved in protective order proceedings are also often in the middle of divorce. In that case, the parties may consolidate the issues in the protective order action into the divorce action and the divorce court can address issues of abuse. Unfortunately, parties sometimes improperly use the protective order process to obtain leverage in a divorce action or to force one party from living in the marital home.
Violation of a protective order is a crime and may lead to arrest and criminal prosecution. Parties may agree to dismiss a protective order under appropriate circumstances or a party may request that the Court dismiss a protective order after it has been in effect for at least two years.
Protective order litigation is highly emotional and can very complex, often involving law enforcement, criminal charges, medical and mental health professionals. We have litigated hundreds of protective order actions obtaining excellent results for our clients.