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Protection From Abuse Orders
It’s possible that protection from abuse orders may be used to gain advantage prior to filing for divorce. A Protection from Abuse Order (PFA) is an ex parte remedy at first. The requirements are to have been in a romantic relationship with someone whether married or not. If one party feels they need protection from violence, threats or feel their life may be in danger in some way they can apply for a PFA. The application is simple and does not require an attorney. The party fills out the application, meets with a magistrate, and if the magistrate decides there is adequate cause, they issue an ex parte PFA immediately before that party leaves the office. This creates a problem with the opposing party since ex parte in and of itself means without notification to the opposing party at first. The opposing party is served with the PFA as soon as a sheriff can locate them to serve it. Once served the opposing party now cannot contact the other side by phone, email, text or through any third person to find out why. Any contact is a violation of the PFA and can be punished for up to five days in jail for each and every violation.
I’ve even seen text messages in cases where they are broken up into several texts and the defendant is charged with contempt for each text message. So for instance if there was one long text sent but the recipient’s phone broke it up into several texts on their end it could be seen as a separate violation and five days in jail for each one independently. This is a problem the defendant faces when served with the PFA. The first reaction is to reach out to the opposing party to discuss what has been filed and that in and of itself is a violation. The allegations in the PFA will be addressed at the first hearing. Many times the allegations start with a recent event and reach far into the past making it almost impossible for the defendant to line up credible witnesses and evidence to disprove them. During the first hearing the defendant may plead to “true” or “not true” in regards to the allegations. If “not true” the PFA containing the allegations will be set for trial. If “true” the defendant doesn’t have a charge that can be seen as a domestic violence problem and has to undergo classes for anger management and continue to not contact the plaintiff in any way.
Often a PFA is obtained prior to filing for divorce to gain advantage in a divorce proceeding. If this is done the PFA gives the plaintiff possession of the home place and custody of any children of the marriage. The defendant is then placed at a disadvantage because they cannot contact or see their children until the PFA is heard in court. If the defendant cannot disprove the allegations, they will have to exercise visitation with their children under supervision and most likely at the YWCA in a monitored room for a couple of hours every week. If divorce is contemplated at the time the PFA is filed, an attorney can motion the court to move the PFA to the divorce court where the issues can be consolidated and litigated to its fullest extent. This takes the PFA out of its original court and places it in a court where the divorce will be heard. It is highly advisable if a defendant is served with a PFA and divorce is imminent that they contact a lawyer immediately to find out their rights. Then the lawyer can explain how violation occurs and have the case moved to a domestic relations court where a trial of the PFA can be done swiftly and often times the defendant can get visitation with the children sooner.
Having a PFA on a person’s record can be damaging, especially if the person’s occupation is dealing with daycare children, schools or in law enforcement. It is vital that if a defendant received paperwork that grows out of a PFA being filed, they must seek legal representation immediately. A defendant’s lack of knowledge of the ways to violate a PFA will not keep them from being taken to jail for five days for each instance of a violation. The old saying that “ignorance of law is no excuse” readily applies to Protection from Abuse Orders.
In determining Alabama child custody, the court considers the wishes of the parents, the wishes of the child if the child is of sufficient age to appreciate the situation, the child's relationship with siblings and extended family, the educational needs of the child, and the mental and physical health of the child.
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