OBTAINING AN ORDER OF PROTECTION OR INJUNCTION AGAINST HARASSMENT
Most people have no idea what to do when the need for a protective order arises. Fortunately, obtaining the order is relatively easy.
You start by filing a Petition for an Order of Protection or Petition for Injunction Against Harassment. You can obtain the form Petition at any courthouse.
Before you file, it is important to know how the process works and what information you should put in your Petition to increase the likelihood that the judge will grant the Order.
1. Obtaining the Order
a. Where to File
The Petition may be filed in a county Superior Court, a city court, or a justice court. The Order has the same effectiveness no matter which court issues it.
One thing to keep in mind is that your protective order case will have to be transferred to Superior Court if a family law case is filed between the parties.
b. Filing the Petition
Next, you must decide what to put in your Petition. A Petition for an Order of Protection must allege each specific act of domestic violence, and name each person you are seeking to protect with the Order.
A Petition for an Injunction Against Harassment must allege a series of specific acts of harassment, including dates. A series of acts means at least two.
In both Petitions, the court will only consider acts committed within the last year. If the defendant requests a hearing, you will be limited to testifying only about the allegations in your Petition. Therefore it is very important to include every incident of domestic violence that has occurred in the past 12 months.
c. Hearing Before the Judge and Issuance of the Order
After you have filled out and filed your Petition, the judge will hold a hearing to determine whether the order should be issued. The defendant is not present at this hearing.
For an Order of Protection, the judge must find reasonable cause to believe that the defendant may commit an act of domestic violence or has committed an act of domestic violence within the last year to grant the Order.
For an Injunction Against Harassment, the judge must find reasonable evidence that the defendant has committed a series of acts of harassment in the last year, or find that good cause exists to believe that the plaintiff (person seeking the Order) will suffer great or irreparable harm if the Injunction is not granted.
If you seek to add other people to your Petition, the court must make separate determinations for each person named. If the required findings are made, the judge will issue the order. If the judge does not have enough information to issue the order, he or she may deny your request or set a pre-issuance hearing within 10 days and provide notice to the defendant to appear at the next hearing.
2. Serving the Order (Effective upon service, how to serve, Duration)
Once the Order is issued, you are required to server the Order, with a copy of the Petition, on the defendant for the Order to become effective. Service is most often completed by hiring a private process server or utilizing the Maricopa County Sheriff’s Department. You may not serve the Order yourself. The Order must be served within one year from the date the judge issued the Order. Additionally, the Order is effective for one year from the date the Order was served.
Once served, you have an enforceable order and the police have the authority to arrest if the Order is violated. At any point during the term of the Order, the defendant may request a hearing.
At the contested hearing, you must prove by a preponderance of the evidence that the allegations you made in your Petition are true. This standard is more difficult to meet than the standard you met to obtain your Order, therefore, hiring an attorney at this point is a very good idea.
If you would like to work with one of our experienced Attorneys, please call OWENS & PERKINS at (480) 630-2464 or CLICK HERE to schedule your free 30 minute consultation.