Domestic Violence Protection Order Process
Commonly Asked Questions
The following are answers to questions that frequently arise. Read through the topics that apply to your situation to see if your questions are addressed. If you need more information, the Clerk may be able to help you. You may choose to consult with an attorney.
- Custody and Visitation
- Conflicting Orders
- Reissuance of Orders
- Can a Protection Order be Obtained against a Minor (Under Eighteen)?
- Only if the minor is at least sixteen (16) years old and involved in a dating relationship with the Petitioner, or if the minor is a spouse, former spouse, or the parent of a child you have in common. If you are seeking relief from abuse by a minor, you will probably be referred to the police to make a report of the abusive incident.
- Can adults seeking protection ask that this protection extend to their minor children?
- Yes. The Domestic Violence Protection Act states that "a person may petition for relief on behalf of himself or herself and (emphasis added) on behalf of minor family or household members."
- What if a minor child is being abused, but the parent is not?
- While a minor may not file a petition, an adult may file a petition on the minor's behalf. Often Child Protection Services (CPS) uses the Order for Protection as a referral for adults seeking protection for minor children. A parent alleging that a child has been abused by another family or household member must be prepared to substantiate these allegations. Hospital reports, affidavits or names of witnesses, the name of the CPS caseworker, etc., should be included in the petition, or presented at the full hearing.
There is a difference between physical and legal custody, and there is no connection between failing to pay child support and being able to visit the child. It is important to remember that the Order for Protection is intended to provide legal protection for you and any minor children you have against abuse from the Respondent. The Order for Protection cannot resolve other issues such as custody and visitation except on a temporary basis. If you think there will be ongoing custody problems, you probably should look into a long-term resolution of this problem, such as dissolution of the marriage, legal separation, paternity action, custody agreement, etc.
You need to take special care when addressing the visitation arrangement. In most cases, you will not be putting this information in a form, but will be telling it to the judge. Try to write out ahead of time the specific days and times you feel are reasonable, so you will be able to present this request to the Court. An example might be "Every Saturday, between the hours of 10 a.m. and 2 p.m." If the Respondent disagrees with your request, the Court is in a position to invoke the "best interest of the child" standard and set up visitation accordingly.
Because emergency protection orders are available through any Municipal, District or Superior Court, it is possible for one party to obtain an Order in a District Court while the other party obtains an order from Superior Court. This can result in orders that conflict with each other, and serious problems could arise, especially when law enforcement is called to enforce these orders.
There is a space on the Petition where you can list other court cases between you and the Respondent. Fill this out as carefully as possible so the court has full knowledge of any existing orders and future hearings. If the case has been filed in the same court the judge or court commissioner will probably want to review the file.
It is not uncommon for a Petitioner and Respondent to reconcile and attempt to work out their relationship. Such a reconciliation may exist in the form of phone calls, dating, allowing the Respondent to visit the Petitioner in Petitioner's home or allowing the Respondent to move back into a shared residence. If something like this happens with you, remember you need to understand the effect such contact may have on the Order for Protection. If your order does not work for you because your situation has changed, it is important to go back to the court that issued your order and ask for a modification.
- Does the Order for Protection prohibit all forms of contact between the parties?
- Not necessarily. Many parties need to have contact because of children, dissolution proceedings, shared property, counseling sessions, etc. Even so, these contacts are not to include harassing or threatening behavior by the restrained party. To avoid further abuse, you may want to specifically request that the Judge prohibit any form of direct contact and make arrangements for a third party (attorney, mutual friend, etc.) to act as a go-between. The Domestic Violence Protection Act states the Court may "order other relief as it deems necessary for the protection of a family or household member."
- If I invite the Respondent to visit or live in a residence that the Respondent has been ordered to stay away from, is the Order for Protection terminated?
- No. An Order for Protection can only be terminated by a court order. There is a Motion to Terminate an Order for Protection that you would fill out if you want to request the court to terminate an Order for Protection.
If the Respondent chooses to enter a residence he or she has been ordered to stay away from, the Respondent can be arrested--even if you invited the Respondent there. If the Respondent's presence in the residence comes to law enforcement's attention (neighbor calls, officer recognizes Respondent, etc.), the officers are required to arrest the Respondent.
- Do I violate the Order by allowing the Respondent into the residence?
- No. You do not violate the restraint provisions of the Order for Protection, unless you have been restrained in some way from contacting the Respondent. However, law enforcement may arrest you if they believe you to be an accomplice in violating the Order.
Violation of the order also can be considered contempt of court. If you no longer need the protection order or wish to have it modified, you must get a court order terminating or modifying the Order for Protection.
- Why must there be a court order to terminate?
- The Order for Protection specifically states the date through which it is effective. When the Order was originally signed, law enforcement was ordered to place the Order for Protection on WACIC, a statewide computer system. Without a court order terminating the protection order, it cannot be removed from WACIC before the expiration date.
- What about the Temporary Order for Protection?
- The Temporary Protection Order is automatically purged from the computer after fourteen (14) days unless it is extended by court order. During this 14-day period, the Temporary Order remains in full force and effect unless you get an Order to Terminate. If you do not appear in court on the day of the full hearing, the protection order will expire.
- Can I have the Order enforced on some days but not on others?
- You have a right to protection from abuse every day of the week. This right also brings with it a certain measure of personal responsibility.
Requesting to have your Order enforced part of the time--allowing the Respondent into your home one day, then calling the police to remove the Respondent the next--substantially weakens your credibility. Such behavior also jeopardizes the ability to prosecute violations, to obtain an Order for Protection in the future, and to receive the desired police response. It can communicate to the Respondent that you are not serious in your determination to be safe.
To protect yourself, your children, and your legal rights, you should plan on having your Order for Protection consistently enforced.
Generally the court will reissue a Temporary Order for Protection when the Respondent is not served prior to the hearing on the full Order. The hearing is reset and the Temporary Order is reissued to permit more time for service on the Respondent.
A Petitioner who has a full Order for a fixed time period can ask the court to renew that Order. This is done by filing a Petition for Renewal at any time within three months before the Order expires. Ask the Clerk for this form if you need it.