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 circumstances;
(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 his/her belongings;
(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, and stalking.
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.