As stated in my previous blog on Orders of Protection, a Defendant served
with an Order of Protection is entitled to request one (1) hearing on
the Order at any time while the Order is in place – i.e. within
one (1) year after the date it was served.
Because the Order of Protection was granted on an
ex parte basis (only one of the parties was present when the Order was granted),
at the hearing the Plaintiff still carries the burden of proving that
the Defendant has committed an act of domestic violence in the last year
or that the Defendant is likely to commit an action of domestic violence
in the next year. Acts that occurred more than a year ago can be considered
only if there is good cause.
The Plaintiff is only permitted to present evidence to the Court regarding
allegations that are specifically stated in the Petition for Order of
Protection. The Defendant will have the opportunity to cross-examine the
Plaintiff and any of Plaintiff’s witnesses, and the Defendant will
have the opportunity to testify on his/her own behalf as well as present
his/her own witnesses. Each party is also allowed to present documents
as evidence to the judge. The rules regarding the admission of evidence
in Order of Protection Hearings allow all relevant evidence to be presented
with only limited exceptions. Examples of evidence that can be used are:
police reports, DCS/CPS records, previous Orders of Protection, criminal
records, pictures of injuries, text messages, and emails. If you plan
to use an audio recording or video, most courts require the audio/video
to be on a separate CD or jump drive that can be played on a device in
the courtroom but also retained by the judge for future use (and admission
into evidence). Thus, if you don’t want your phone confiscated by
the Court, you cannot simply play the recording from your phone.
Upon the close of evidence and argument, the judge or commissioner will
decide whether to: (1) keep the Order of Protection in place as it is;
(2) keep the Order of Protection in place but modify its terms; or (3)
dismiss or quash the Order of Protection all together. If the Order of
Protection is upheld it will continue to be in effect for one (1) year
after it was served. If the Court dismisses the Order of Protection, there
will be no additional restrictions on contact between the parties, although
it is typically advisable for the Defendant to keep a safe distance from
the Plaintiff to avoid any future issues.
If an Order of Protection is upheld after a hearing, the Defendant will
be prohibited from possessing fire arms for the remainder of the time
the order is in effect regardless of whether a prohibition on firearms
was contained in the original order. For more information on firearms
possession and not becoming a prohibited possessor, please look for my
next blog regarding Brady Indicators and the prohibition on possession
of firearms following an Order of Protection Hearing.
If you would like to work with one of our experienced Attorneys, please call
OWENS & PERKINS at
480.630.2464 to schedule your free 30 minute consultation.