|
Domestic Abuse Orders for Protection
(provided by Eric C. Nelson, Esq.)
1. Definition of Domestic Abuse.
Domestic abuse is defined as any of the following committed against a family or household member: (1)
- physical harm2. Who May Petition for Protection?
- bodily injury
- assault (the infliction or attempted infliction or bodily harm)
- the infliction of fear of immediate physical harm, bodily injury, or assault
- terroristic threats (threatening to commit a crime of violence against another)
- criminal sexual conduct
The domestic abuse order for protection is only available to the family and household members of the abuser. "Family or household members" means the following people: (2)
- current spousesIf the person abused is a minor, then the minor's guardian may bring the petition on the minor's behalf.
- former spouses
- parents and children
- persons related by blood
- persons who are currently residing together
- persons who have resided together in the past
- persons who have a child in common
- a man and a woman if the woman is pregnant and the man is alleged to be the father
- persons involved in a significant romantic or sexual relationship
3. Relevance to Custody Proceedings.
An Order for Protection is a cheap, quick, and easy way to obtain temporary custody, child support, spousal maintenance, and possession of the house and everything in it. It is a crippling blow to the recipient, who must quickly deal with the immediate issue of finding a place to live and not having access to his or her home, while the accuser is comfortably moving on to further stages of the custody battle.
Worse, once an Order for Protection is obtained, this document is repeatedly photocopied, flagged, highlighted, waved around like a red flag, and referred to in ominous tones at every opportunity by counsel for the "victim." Whether rightly or wrongly issued, it creates a bad first impression and predisposition for any judge, custody evaluator, guardian ad litem, or other third person involved with the case.
As one judge (referee) actually stated on the bench in a case I once had: "I have to err on the side of caution." (This meant to him that when in doubt, he had to issue the Order for Protection, even though this is contrary to law).
Because an Order for Protection can be such a powerful weapon, it is often abused. Many allegations of abuse are wholly fabricated. Many are gross exaggerations. Any physical contact during an argument becomes an assault. Any vague comment about future possibilities becomes a "threat." It is ridiculous.
To be sure, there are plenty of legitimate instances of domestic abuse, where an order for protection is an important defensive measure which should not be overlooked. In protection cases that are coincident with custody disputes, however, I would venture to hypothesize that more than half are bogus.
In any case, a person served with a Petition for an Order for Protection should defend aggressively, particularly if custody is an issue, for the reasons mentioned above.
4. Ineligibility to Possess Firearms.
An often overlooked consequence of an Order for Protection is that the person restrained thereby may not possess any firearm for as long as the order remains in effect. (3) Violation is a federal felony offense punishable by up to 10 years in prison. (4)
(1) Minnesota Statute section 518B.01, Subdivision 2(a).
(2) Minnesota Statute section 518B.01, Subdivision 2(b).
(3) United States Code, Chapter 18, Section 922(g)(8).
(4) United States Code, Chapter 18, Section 924(a)(2).
Information provided by:
Eric C. Nelson, Esq. located at
http://www.divorcesource.com/MN/DS/nelson.html
Go to: Minnesota Articles and Resources
|
Please Read Our Disclaimer