Unfortunately, domestic violence frequently rears its ugly head in family law. Sometimes a protective order is appropriate and even essential. Of course, it also can make things more tricky, especially when the protected party and the protected-against party have one or more children in common.
What exactly is a protective order?
Variously called "order of protection" (OOP), "restraining order" or "injunction against harassment," its purpose is almost always the same: to protect the safety and well-being of one or more persons who are being harassed, intimidated, threatened or harmed by another person. In Arizona, where I practice, and in many other jurisdictions, an order of protection usually is assigned to people who either are currently or have been in a romantic relationship, or are related by blood or marriage. An Injunction against harassment is used for unrelated or non-intimate persons, and a restraining order typically applies to a criminal case. Some orders are called "temporary" or "emergency." Others are termed "permanent," although they usually last only six months to a year, with unlimited renewability. Those relating to an alleged perpetrator and victim in a criminal matter usually last for the duration of the court proceedings or, if there is a conviction, during the sentencing period.
How exactly do they work?
You may have heard it said that a protective order is "just a piece of paper" and that it can't really protect someone if someone else wants to hurt him or her. That may be true to a certain extent, but in the ordinary course of business it can be quite helpful to have that piece of paper. If the undesired party shows up unannounced and causes the cover person or persons to be reasonably afraid, they can call the authorities and tell the dispatcher they have a protective order signed by a judge in hand. This may mean a greater likelihood of responsiveness or quicker response time from the officer on duty. Also, potential and actual breaches of protective orders tend to happen at night and on weekends, when the court is closed, so having proof that the court has signed the order and showing a copy to the police officer often does wonders.
How do I get an order of protection?
First, you must have a reasonable belief that you are in danger of psychological trauma, physical assault and/or death at the hands of the person from whom you want to be protected. This has to be what the average adult would think, not what an "eggshell-skull" (particularly sensitive) person might think. Then you need to go to the local county superior courthouse and ask the clerk of court for a form to fill out for the application or petition for a protective order. In Pinal County, Arizona, where I primarily practice, you turn in the form and then wait your turn to speak with a judge. Warning: Be sure to allow plenty of time, because you may have to wait half a day or more to get in front of a judge, depending on how many judges are on duty that day and how heavy their dockets (calendars) are. Patience is a virtue here, and the wait is typically well worth it.
How hard is it to get a protective order, and how hard is it to keep one in place?
My experience has been that it's quite easy to get a protective order but harder to keep it in place. The reason is that petitions for protective orders tend to be ex parte. This means that the judge will agree to hear from only one side in the controversy (the alleged victim) and make a determination based on statements made by the petitioning party and any evidence he or she has to present. Although it may help to have a certified legal document preparer or an attorney help you fill out and file the form, the judge will not allow anyone but the alleged victim in the courtroom or chambers (the judge's office) to discuss the request for a protective order. But as you might guess, if and when a protective order is granted, the person against whom it is ordered can challenge its propriety by asking for a hearing, which is supposed to be held within 5 to 10 business days of the offender's receiving notice, through service of process, that an OOP has been executed.
What should I put on the protective order application?
In the petition for a protective order, be as specific as possible about what things the person has done in the past to cause you harm or fear of harm. This includes dates, times, locations, and what happened. Start recording this information in detail IMMEDIATELY in a locked diary. Also specify the locations you want protected, such as home, work, or school, and everyone you want to be protected by the order. You can list only one defendant (the alleged perpetrator) per application, but you can list an unlimited number of family members who you feel are directly in harm's way.
What will happen at the hearing?
If the person against whom the protective order is obtained objects in whole or in part to it, he or she will get a hearing as a matter of right. If requested, the hearing is automatic. Then both parties—or at least the adult perpetrator and victim(s)–must show up and give their own testimony and arguments, call witnesses and provide evidence as available and relevant. If one or more of the parties are represented, the lawyers will take care of all this. The Court has two options: (1) uphold the order and affirm it for a "permanent" time period; or (2) quash it the order, effectively immediately upon the conclusion of the hearing. (By the way, the term is "quash," not "squash," as mistakenly used by many laypersons.)
Some practical considerations
As hinted at the beginning of this legal guide, if and when a court grants someone a protective order, if the protected person and the protected-against person share any minor children, this will become a much more complicated proposition. Assuming that the court has not terminated the parental rights of the party against whom the protective order is sought and obtained, and that there is presently no DV criminal protective order in place, there still will need to be communication about the day-to-day and urgent needs of the children. Therefore, the court often will order the parties to select a neutral third party—or the judge himself or herself will appoint someone—to act as the go-between until the protective order expires. There are also many social-service agencies that can provide a safe, controlled environment for visitation and/or exchange at minimal cost. Best of luck, and stay strong!
This legal guide should not be construed as formal legal advice or the formation of a lawyer/client relationship.