Introduction.
Over the past few years, the characteristic ease
of obtaining Harassment Restraining Orders and Domestic Abuse Orders
for Protection has become common knowledge. By law, the courts are
required to provide assistance to persons seeking Harassment
Restraining Orders and Orders for Protection. Typically, filing fees
are waived for the petitioner-complainant. Court personnel assist
the petitioner in filling out the forms, and guide the petitioner
through the process. In some counties the petitioner does not even
have to fill out the forms. They are drafted by court personnel, and
the petitioner simply signs in the appropriate places. Regrettably,
the liberalization of these protective devices has given rise to a
sort of factory-style processing of accusations. It is all too easy
for accusers to stretch the truth or even lie in order to obtain
Harassment Restraining Orders and Orders for Protection, often times
without giving any real notification to the opposing party. And most
judges don’t take the time to screen out the frivolous cases from the
beginning as they should.
What follows is an outline of basic law on
Harassment Restraining Orders and Domestic Abuse Orders for
Protection.
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Definition of Harassment.
The most common form of Harassment is defined as
"repeated, intrusive, or unwanted acts, words, or gestures that are
intended to adversely affect the safety, security, or privacy of
another. . ." Some examples of harassment would be: repeatedly
calling a person after being told not to; having contact with a
person either at the person’s home, work, or other place after being
told to stay away; threatening to harm a person; creating a scene at
another person’s place of employment; stalking a person; etc.
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Obtaining a Harassment Restraining Order.
Any person who is the victim of harassment can
petition for a harassment restraining order. If the victim is a
minor, then the parent or guardian can petition on behalf of the
minor child. The first step is to go to the courthouse in the county
where the victim lives. Court personnel will provide the requisite
forms. The victim must sign an affidavit under oath, stating the
specific facts and circumstances of the harassment. There is a $132
filing fee which must be paid at this time. However, if the victim
is indigent, the filing fee is waived. Also, if the victim alleges
any of the following conduct constituting criminal harassment, then
the filing fee is likewise waived:
- directly or indirectly manifests a purpose or
intent to injure the person, property, or rights of another by the
commission of an unlawful act;
- stalks, follows, or pursues another;
- returns to the property of another if the
actor is without claim of right to the property or consent of one
with authority to consent;
- repeatedly makes telephone calls, or induces a
victim to make telephone calls to the actor, whether or not
conversation ensues;
- makes or causes the telephone of another
repeatedly or continuously to ring;
- repeatedly uses the mail or delivers or causes
the delivery of letters, telegrams, packages, or other objects;
or
- engages in any other harassing conduct that
interferes with another person or intrudes on the person’s privacy
or liberty.
Once a valid Petition is filed, the Court will
routinely issue a temporary harassment restraining order, which is
good for 14 days (or longer by agreement of the parties, or to allow
for service of the temporary order). The temporary harassment
restraining order will typically provide that the respondent must
stop harassing the petitioner, and must have no contact with the
petitioner. The temporary order will also set a date for an
evidentiary hearing.
If the petitioner does not provide an address
for service on the respondent, and is willing to swear under oath
that he or she does not know the petitioner’s place of residence or
place of business, then service on the respondent will be made by
publication in the back of the newspaper. (Realistically, when
service is made by publication, the respondent never finds out about
the case, because nobody reads the fine print legal notices in the
back of the newspaper. Service in this manner is no service at all.
It is a great farce and a mockery of justice and of our legal system,
and those of us who are a part of that system have good reason to be
ashamed. I once had a client who was charged with a misdemeanor for
violating a harassment restraining order when he went to visit his
child at day care. His ex-wife had obtained the harassment
restraining order without his knowledge by telling the court that she
didn’t know his address, even though she did. Service was made by
publication, and when my client didn’t show up, the harassment
restraining order was issued by default. My client didn’t find out
about it until he was charged with a misdemeanor for violating the
order, several months later. As soon as he found out, we went into
court to vacate the restraining order on the grounds that it was
obtained by fraud. The judge denied our motion on the grounds that
we should have made the motion earlier! How a person can challenge a
restraining order he doesn’t know exists escapes me, but this kind of
injustice is fairly common in this area of the law).
At the evidentiary hearing, both parties have
the right to present witnesses, including themselves, to testify.
Both parties also have the right to cross-examine each other’s
witnesses, and to offer exhibits into evidence. After all the
evidence is in, the Court will issue a harassment restraining order
if it finds reasonable grounds to believe that the respondent engaged
in harassment against the petitioner. The harassment restraining
order will typically order that the respondent have no contact with
the petitioner. The order will usually be in effect for two
years.
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Challenging a Harassment Restraining Order.
The person accused of harassment has no way to
object to the issuance of a temporary harassment restraining order.
These are issued solely on the basis of the accuser-petitioner’s
affidavit. If the petitioner is willing to tell a lie in order to
get the temporary harassment restraining order, there’s nothing you
can do to prevent its issuance. The accused person has no say until
the time of the evidentiary hearing, which generally must be held
within 14 days from the date of the temporary harassment restraining
order.
This can be very problematic when the person
accused of harassment resides with the petitioner. Without warning,
the accused is barred from his or her home, and has to find a place
to live for the next two weeks while he waits for the evidentiary
hearing. If he’s lucky, he has his checkbook and credit cards
already in his possession. If they’re back in the home, he’s just
out of luck, and has to make due until the hearing.
At the hearing, the respondent has the right to
present witnesses in his defense, including himself. The respondent
also has the right to cross-examine the petitioner’s witnesses, and
to cross-examine the petitioner herself if she is a witness.
The Court cannot issue a harassment restraining
order unless it finds "reasonable grounds" to believe that the
respondent has engaged in harassment. It is important to note that
the legal question is not whether the petitioner felt harassed, but
rather, whether the respondent intended to harass the
petitioner.
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Violation of a Harassment Restraining Order.
Violation of a Harassment Restraining Order is a
crime--either a misdemeanor punishable by up to 90 days in jail
and a fine of up to $700, or a gross misdemeanor punishable by up to
a year in jail and a fine of up to $3,000, depending on whether or
not it is a repeat violation.
Ordinarily, the police cannot arrest someone on
a misdemeanor charge without an arrest warrant, unless the
misdemeanor is committed in the officer’s presence. There is an
exception to this in-presence requirement for violation of a
harassment restraining order. If an officer has probable cause to
believe that the respondent has violated a harassment restraining
order--and this can be based solely on the accusation of the
petitioner--then the officer is required by law to arrest the
respondent and take him or her into custody.
A person charged with misdemeanor or gross
misdemeanor violation of a harassment restraining order has all the
rights available to accused persons in any other criminal case,
including the right to cross-examine the witnesses against him, and
the right to a jury trial. A person cannot be convicted of violating
a harassment restraining order unless the State can prove, beyond a
reasonable doubt, that the respondent knew about the restraining
order, and intentionally violated it.
A charge of violating a harassment restraining
order should not be confused with a charge of harassment itself. The
crime of harassment is a gross misdemeanor punishable by up to a year
in jail and a fine of up to $3,000. A repeat or otherwise aggravated
violation is a felony punishable by up to five years in prison and a
fine of up to $10,000.
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Ineligibility to Own Firearms.
According to a recent federal law, if a person
receives actual notice of a harassment hearing, and after the hearing
a harassment restraining order is issued against the person on behalf
of an intimate partner of the person, or the child of that intimate
partner, and the harassment restraining order either includes a
finding that the person represents a credible threat to the physical
safety of the intimate partner or child, or the order by its terms
explicitly prohibits the use, attempted use, or threatened use of
physical force against the intimate partner or child that would
reasonably be expected to cause bodily injury, then that person is
ineligible to possess a firearm for the rest of his or her life.
Violation of this federal law is a felony punishable by fine and up
to 10 years in prison.
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Distinguishing from the Harassment Restraining Order.
Like the harassment restraining order, the
domestic abuse order for protection has become increasingly popular
over the past few years. While the relief available from a
harassment restraining order is limited to an order of no contact and
no harassing conduct, the domestic abuse order for protection offers
a wide range of other relief for no more effort than that required in
obtaining a harassment restraining order. Moreover, the $132 filing
fee is automatically waived for the petitioner seeking an order for
protection. The only thing that makes the domestic abuse order for
protection more difficult to obtain than the harassment restraining
order is that it is much harder to prove domestic abuse than
harassment. Moreover, the order for protection is only available
against family or household members, as explained below.
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Obtaining a Domestic Abuse Order for Protection.
A person may petition for protection at the
courthouse in the county where he or she resides, where the
respondent resides, where the domestic abuse occurred, or where a
family court proceeding between the parties has been
brought--whichever place the petitioner prefers. The $132
filing fee is automatically waived for the petitioner. Court
personnel provide the forms and assistance for filing a petition for
protection. As part of the petition, the petitioner must sign under
oath an affidavit stating the specific facts and circumstances of the
abuse.
Upon receipt of a petition for protection, the
Court will set a hearing for a date within 14 days from the date the
petition was made.
If the petitioner alleges an "immediate and
present danger of domestic abuse"--which is usually the
case--then the court will immediately issue a temporary order
for protection, which will remain in effect until the date of the
hearing. In addition to other forms of relief, a temporary order for
protection can order that the respondent be excluded from the
petitioner’s home (even if it’s also the respondent’s home). The
respondent has no way to object to issuance of a temporary order for
protection. He must simply try to make due until the date of the
hearing. The petitioner and temporary order for protection and/or
notice of hearing must normally be served on the respondent in
person. However, if the petitioner is willing to file a sworn
affidavit that service was unsuccessful because the respondent is
avoiding service by concealment or otherwise, and that a copy of the
petition and notice of hearing has been mailed to the respondent at
the respondent’s residence, or that the residence is not known to the
petitioner, then the Court will order service by publication in fine
print in the back of the newspaper.
At the hearing, both parties have the right to
present witnesses and exhibits, and to cross-examine each other’s
witnesses.
After the hearing, if the court finds that
respondent has a present intention to inflict physical harm, bodily
injury, or assault, or to inflict a fear of imminent physical harm,
bodily injury, or assault, then the court will issue an order for
protection, which may include any of the following forms of
relief:
- restrain the abusing party from committing
acts of domestic abuse;
- exclude the abusing party from the
petitioner’s residence, even if that is where the abusing part
also lives;
- exclude the abusing party from a reasonable
area surrounding the dwelling or residence;
- award temporary custody or establish temporary
visitation with regard to minor children of the parties;
- order child support payments;
- on the request of the petitioner--if the
parties are married or have minor children in
common--provide counseling or other social services for the
parties;
- order the abusing party to participate in
treatment or counseling services;
- award temporary use and possession of property
and restrain one or both parties from transferring, encumbering,
concealing, or disposing of property except in the usual course of
business or for the necessities of life, and to account to the
court for all such transfers, encumbrances, dispositions, and
expenditures made after the order is served or communicated to the
party restrained in open court;
- exclude the abusing party from the place of
employment of the petitioner, or otherwise limit access to the
petitioner by the abusing party at the petitioner’s place of
employment;
- order the abusing party to pay restitution to
the petitioner;
- order the continuance of all currently
available insurance coverage without change in coverage or
beneficiary designation; and
- order, in its discretion, other relief as it
deems necessary for the protection of a family or household
member, including orders or directives to the sheriff or
constable.
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Challenging an Order for Protection.
The person accused of domestic abuse has no way
to object to the issuance of a temporary harassment restraining
order. These are issued solely on the basis of the
accuser-petitioner’s affidavit. If the petitioner is willing to tell
a lie in order to get the temporary order for protection, there’s
nothing you can do to prevent its issuance. The accused person has
no say until the time of the evidentiary hearing, which generally
must be held within 14 days from the date of the temporary order for
protection. Therefore, if you expect that the person you are living
with might be intending to seek an order for protection against you,
you had better have a plan ready for when the police remove you from
your home without warning. You had better have a plan for survival
for the next 14 days while you await a hearing. Make sure you have
your checkbook, credit cards, and important papers with you.
Also, make certain that when you are served the
ex parte temporary order for protection, that you fill out and return
the form to request a hearing, if the petitioner has not already done
so.
At the hearing, the respondent has the right to
present witnesses in his defense, including himself. The respondent
also has the right to cross-examine the petitioner’s witnesses, and
to cross-examine the petitioner herself if she is a witness. If you
don’t have a lawyer at this hearing, you can expect to lose. If
you’re expecting a divorce, then the stakes are even higher, because
an order for protection against you will make you look very bad in
divorce court, and you will have a hard time getting back custody of
your children, among other things.
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Violation of a Domestic Abuse Order for Protection.
Violation of an Order for Protection is a crime.
A first violation is a misdemeanor punishable by up to 90 days in
jail and a fine of up to $700. A second violation within 5 years of
a previous violation of an order for protection, or within 5 years of
a previous conviction for assault, terroristic threats, harassment,
or violation of a harassment restraining order, is a gross
misdemeanor punishable by a jail term of at least ten days, up to a
year, and a fine of up to $3,000.
Also, under State law, a person convicted of
violating and order for protection is prohibited from possessing a
pistol for 3 years. Violation is a gross misdemeanor. If the person
used a firearm in any way when he or she violated the order for
protection, then the person is prohibited from possessing a pistol
for a minimum of 3 years, or for as long as the remainder of the
person’s life.
Ordinarily, the police cannot arrest someone on
a misdemeanor charge without an arrest warrant, unless the
misdemeanor is committed in the officer’s presence. There is an
exception to this in-presence requirement for violation of an order
for protection. If an officer has probable cause to believe that the
respondent has violated an order for protection--and this can
be based solely on the accusation of the petitioner--then the
officer is required by law to arrest the respondent and take him or
her into custody.
A person charged with misdemeanor or gross
misdemeanor violation of an order for protection has all the rights
available to accused persons in any other criminal case, including
the right to cross-examine the witnesses against him, and the right
to a jury trial. A person cannot be convicted of violating an order
for protection unless the State can prove, beyond a reasonable doubt,
that the respondent knew about the restraining order, and
intentionally violated it.
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Ineligibility to Own Firearms.
According to a recent federal law, if a person
receives actual notice of an order for protection hearing, and after
the hearing an order for protection is issued against the person on
behalf of an intimate partner of the person, or the child of that
intimate partner, and the order for protection either includes a
finding that the person represents a credible threat to the physical
safety of the intimate partner or child, or the order by its terms
explicitly prohibits the use, attempted use, or threatened use of
physical force against the intimate partner or child that would
reasonably be expected to cause bodily injury, then that person is
ineligible to possess a firearm for the rest of his or her life.
Violation of this federal law is a felony punishable by fine and up
to 10 years in prison.
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