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Domestic Abuse is a serious issue. Under Minnesota Statutes, domestic abuse is an offense that is carried out by an adult who is now or used to be married to the victim, who is a parent to the victim, who is unmarried to, but who lives or used to live with the victim, or who is parent to a minor or an unborn child. Despite the fact that the domestic abuse process is sometimes abused with fabrications occurring in order to gain advantage in family law proceedings, facts and statistics clearly indicate that strong laws are necessary.
A victim can make a report of assault to police in order to have criminal charges filed. A victim may also file a civil suit seeking damages. This is true even if the abuser is a spouse. Additionally, a victim may file for Order for Protection against the abuser.
Orders for Protection (OFP)
An order for protection is a restraining order prohibiting the person accused of committing abuse from continuing the abuse. Often the Order for Protection will also include provisions limiting or prohibiting contact with the victims. This obviously becomes a difficult issue where minor children are involved.
Process for an OFP
The Requirements Orders for protection can be obtained at the county courthouse or at the county domestic abuse office in the county where the victim lives. Orders for Protection may also be drafted by attorneys or at battered women’s shelter or women’s centers. For a list of centers near you, Click Here. There is no fee for an order for protection, and the county is obligated to provide the public with assistance in completing the paperwork. For a court order to be granted, a petition must be supported with evidence of the alleged abuse. As a result, it is important to include specific facts regarding the abuse in your affidavit. If the petition is defective or if it fails to list sufficient allegations of abuse, the petition may be dismissed. You may wish to consult with a lawyer before completing your OFP petition.
A Petition for an Order for Protection may seek other relief in addition to a restraining order. Other common requests include seeking an order for restitution, requiring the abuser to attend counseling, and for child support and/or spousal maintenance.
Once a Petition for an OFP has been filled out with a supporting affidavit, it is presented to the signing Judge on the same day. The signing Judge reviews the petition to determine if the allegations of abuse are sufficient to warrant the entry of an Temporary Order prohibiting contact between the parties until a hearing can be held. In cases where the parties live together, the alleged abuser may be served and required to leave the family home with little more than the clothes on his back.
After a Temporary Order is entered, an initial hearing will be scheduled and held within seven (7) days. Regardless of whether the accused person attends the court hearing, the abused person or his or her guardian must be present. At In most counties, the initial hearing allows the alleged abuser to either:
If an evidentiary hearing is requested, it is likely to occur within seven (7) days from the initial appearance. At the evidentiary hearing the Petitioner proceeds first calling witnesses and testifying regarding the allegations of abuse. It is at the hearing that the person alleging abuse should substantiate the abuse with medical records and police reports. The alleged abuser has the opportunity at such a hearing to cross examine any and all witnesses called by the Petitioner. The alleged abuser proceeds second. He is allowed to call any witnesses that support his contention that the alleged abuse did not occur. The Court will usually issue an Order on the same day that the evidentiary hearing is held. If the Petition is granted and the Judge determines that abuse has occurred, the resulting order will remain in effect up to one year. Despite the fact that domestic abuse hearings are limited with regard to duration and the evidence presented, a resulting order can have devastating consequences for the alleged abuser:
Enforcement of an OFP
Enforcement of Orders For Protection Victims who have obtained Orders forProtection expect those orders to be enforced, regardless of when or where a violation occurs. To address that concern, Courts throughout Minnesota are now entering information on new Orders for Protection in a centralized database.
Once entered into the Court OFP System, information on served temporary orders and all permanent orders is available to court staff anywhere in Minnesota. This transformation from manual to automated processing of OFP records was accomplished on a county by county basis. All counties were automated and capable of entering orders on December 31, 1998. Only Minnesota court personnel have access to the Court OFP system. However, selected information from theCourt OFP System is automatically passed, on a daily basis, to another automated system called the CJIS Hot Files which is available to criminal justice agencies throughout Minnesota. As a result, law enforcement officers throughout Minnesota and the nation can now access information about an existing order through their agencies’ Criminal Justice Data Network computers and can then obtain further confirmation of the full information contained in the order by contacting the controlling law enforcement agency. With this information, officers will be better able to respond to allegations of violations, more likely to arrest suspected offenders, and better equipped to make decisions about issuance of gun permits.
Violations of an OFP
When an order for protection, either temporary or permanent, is granted and the person prohibited from contacting the abused attempts to violate the order, the police should be contacted through the 911 emergency system and notified of the order. Once the order is enforced and the alleged abuser removed, a complete police report should be filed documenting the incident.Violation of an order is a criminal offense for which charges may be brought.
Changing and OFP
If circumstances arise making a change in the order necessary, the county domestic abuse office or county clerk must be contacted to set another hearing. An appointment will be set to request a hearing and the process is similar to that listed above. If an extension of the protection period is needed, a victim or guardian should contact the appropriate officials approximately three weeks before the current order expires.
One spouse must have been a Minnesota resident for at least 180 days prior to filing for divorce.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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