As a divorce and family law practitioner, my clients frequently find themselves
confronted with situations involving domestic violence and protective
orders. A spouse can become volatile at the end of a relationship, and
they frequently pose a risk of harm at the time they find out legal action
for divorce or paternity has been filed against them. On the flip side,
some litigants misuse protective orders to control who stays in the house
and who has access to the children at the beginning of their divorce –
when tensions are high and outcomes regarding finances, property, and
“custody” are unknown.
Currently in Maricopa County, protective orders are handled as a separate
case from your divorce or paternity suit. This means that in all likelihood,
one judge will hear the issues relating to the Order of Protection and
a different judge will hear matters relating to your divorce, despite
the obvious similarities in facts and the affect one has on the other.
An Order of Protection can:
(1) prohibit contact between the Plaintiff and Defendant – it can
also limit contact to written (text and/or email) or verbal, under specific
(2) grant a Plaintiff exclusive use and possession of a residence, but
the Defendant is allowed to return one time with law enforcement to retrieve
(3) order the Defendant to stay away from certain locations such as the
Plaintiff’s work, school, or other physical address;
(4) grant the Plaintiff exclusive custody and control over a pet;
(5) prohibit contact with a child by listing the child as a protected party; and
(6) order any other relief that is necessary to protect the Plaintiff.
If the judge finds that the Defendant is a credible threat to the physical
safety of the Plaintiff, the judge may prohibit the Defendant from possessing firearms.
An Order of Protection can be obtained against an individual who is your
spouse; former spouse; with whom you live or used to live; with whom you
have a child in common; with whom you are related by blood as a parent,
grandparent, child, grandchild, brother or sister; is a spouse of one
of these blood relations; and a person with whom you are or were in a
romantic relationship. If you do not have this type of relationship with
the person, you would need to file an Injunction Against Harassment,
not an Order of Protection.
Once you have established the requisite relationship in order to obtain
the Order of Protection, you also have to show that this person has committed
an act of domestic violence against you in the last year or that the person
is likely to commit an act of domestic violence against you in the next
year. Examples of domestic violence include, but are not limited to: threatening
or intimidating, assault, custodial interference, trespass, criminal damage,
interference with judicial proceedings, disorderly conduct, harassment,
In order to obtain an Order of Protection, you can file a Petition in any
superior court, municipal/city court, or justice court. If you have a
pending divorce, you must file your Petition for Order of Protection in
superior court if it is against your spouse. Each court is equipped with
procedures for helping you draft and file the Petition for Order of Protection.
Once the Petition is drafted, you will be called in front of a judge or
commissioner who will ask you questions about the incidents alleged in
your Petition. The Petition must allege all acts of domestic violence
you intend to claim against the defendant. The judge/commissioner will
then either grant, deny, or set the matter for a hearing. If your request
for the Order of Protection is granted, you will be given information
on how to serve the Order on the defendant. The Order of Protection
must be served to be valid and enforceable. Following service, the Defendant has
the one time right to request a hearing on the Order of Protection at
any time while the Order is in effect. Orders of Protection last for one
(1) year from the date that they are served, and they expire one (1) year
from when they are issued if they are not served.
For additional information on Orders of Protection, please look for my
next blog regarding disputing an Order of Protection and Order of Protection Hearings.
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.