By Craig Wismer
Every Thursday in the Arrowhead Justice Court, I am on duty to review and adjudicate protective orders.
Even though you hopefully will never need to request that a court issue one, I thought you might like to learn a bit more about this little understood document.
Protective order is a generic term that refers to three types of petitions — orders of protection, injunctions against harassment and injunctions against workplace harassment. In each type of case, the petitioner is seeking to prohibit the defendant from having any contact with him or her, or engaging in any conduct that could reasonably be considered to be harassing. Because of space constraints, the focus of this commentary will be solely on orders of protection.
An order of protection requires that a specific relationship exist (e.g. father/son, mother/daughter, spouses, current or former roommate) between the parties in order for it to be granted. In addition, it must be demonstrated that either an act of domestic violence previously occurred or, if not, that a person could reasonably construe one is likely to occur in the future.
At the time a person submits a completed petition to the Arrowhead Justice Court for review, I place that individual under oath for sworn testimony, after which I explain that there are three potential outcomes — grant the petition, deny it or schedule the matter for a pre-issuance hearing, at which time all parties, including the defendant, will have to appear and testify. Generally speaking, in adjudicating a protective order, the look back period is limited to 12 months.
If granted, the Order of Protection becomes effective once it is personally served upon the defendant, which may be done free of charge by a law enforcement entity — local police or a constable. Because on occasion there may be difficulties in serving the order, such as when a defendant attempts to evade service of process, the plaintiff is given 12 months from the date it is issued to do so. It is important to note that, as is clearly stated on the order itself, a defendant may be citied for the criminal charge of interfering with judicial proceedings, a class 1 misdemeanor, if he or she violates the order. This would likely include the defendant being placed under arrest and taken into custody. Obviously it would, therefore, be imprudent to do so.
In addition, some people are of the mistaken impression that the plaintiff and defendant may agree to modify an existing court order for it take effect. That is incorrect. Since it is a court order, only a judge may do so, either at the request of the plaintiff or at the conclusion of a hearing.
Speaking of a hearing, the defendant may elect to challenge the issuance of the order of protection and one will be conducted in the near future — no later than 10 judicial days. Both the petitioner and the defendant must appear and give testimony. Both parties will also be given the opportunity to call witnesses and present evidence that they believe supports their position. The plaintiff has a burden of proof to meet called a preponderance of the evidence — think of it as a slight tipping of the scales — if the judge is to conclude that the order of protection should remain in place.
At the conclusion of the hearing, the judge may choose to the keep the order in effect, dismiss the case or modify the terms of the order. If the defendant doesn’t appear, the order of protection will most likely remain in effect for one year from the date that it was served upon that individual. If the plaintiff doesn’t appear, the order will be quashed and the case dismissed without prejudice.
Appellate rights do exist for orders or protection, meaning that if a party to the case doesn’t agree with the judge’s decision, he or she may appeal the matter to Superior Court.
Editor’s Note: Craig Wismer is Arrowhead Justice Court justice of the peace.