What is The Criteria For Granting A Protective Order?


The first part is pretty standard. We look at the relationship to one another. Is this a relationship where they are in a marriage? Is this a relationship where they are in a dating relationship? Is this a relationship where they are just household members? Then when we look at who is going to be on the protective order application, but that is only the first step; how are they related? Would they fall in the family court? Then we look to see if it is an act or a threat of domestic violence.

Assaultive conduct; things of that nature or they brandished a weapon and they said we are going to hurt you. That is a pretty good threat of domestic violence and then we look at the last portion of it and if that is likely to reoccur. That is one of the ways we tend to fight by showing that it is not likely. If it ever happened to reoccur because these people are no longer in close proximity to each other, but those are the steps we go through, relationships, domestic violence and that the likely reoccur.

How Often Do Divorce Cases Accompany Protective Orders?

For a while it was pretty high; when I say pretty high, it was hitting in my individual practice probably ten percent of the time. We were either are making the request or we were fighting the request and now it is dropped significantly. I tend to look at it as just the people in our area are getting a little bit older and not subject to such rash decision making in personal lives. But, it is now a smaller percentage, probably five percent of the time that we are dealing with a protective order. We do have a country attorney’s office locally and the legal aid society locally that handles the petitioner dealing with the protective order.

How Often Do Custodial Issues Accompany A Protective Order?

It really goes hand in hand. If you cannot have contact with the other spouse and you have been found to have engaged in domestic violence, you are no longer eligible to be a joint managing conservator. So it really says that you are going to have nothing, but visitation with this child. No decision making abilities. So when it comes to that, we have to fight that as hard as we can because it does have a permanent type of mark against you for custody and things of that nature.

Do Both Parties Need To Be Present In Court For The Order To Be Issued?

They do not. The petitioner must always be present. The respondent, if he is jailed they will bring him over from the jail, but if he refuses to participate; in other words somebody has gone after him like a processor or a sheriff deputy other members of law enforcement that are authorized by the court to present service, then they do not have to be present. The hard part is, if the order is not effective until it is placed in the respondent’s hand. So if he is not present in court then law enforcement has to have the order, has to read it out to him, make sure he has it and then go file proof. Then place it in one’s hand back in the court system and that way everybody knows that he has been given a copy and he is liable to submit to those rules.

How Long Are These Orders Typically In Place For?

They really vary. We have some local judges that like to do it for six months so that the parties can finish their court business and move on with their lives. The general norm in other courts is the maximum possibility of two years; that is a maximum possibility that really used to be two years. You could always ask it to be increased. But now we do have the lifelong probation, and that is really not that common, because judges just do not want to do that because they know once that is done, then it really is hard to undo. By the time it comes back to court it may be different judges and so while it can be life time, it is extremely rare. Those are for acts of violence or aggression against children. Those are a lot longer.

Are Protective Orders Civil Or Criminal In Nature?

The consequences are criminal in nature of violating a protective order. You can be arrested and charged with the violation of the protective order which is a criminal act. But, they can start out differently. They can start out civil with domestic cases, or they can start out as criminal, a response to the accusation of domestic violence, so they can come up to the JP courts or they can come up to the domestic courts. The JP courts are the criminal side.

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