Injunction Junction

Posted on: June 3rd, 2014 by Harter Schottland

Orders of Protection are an interesting statutory animal. They are civil, yet they have criminal consequences–serious ones. They are not a family law matter, yet they can deal with issues of custody, visitation and child support. However you categorize Orders of Protection, they are something you need to pay attention to if served with one. Orders of Protection are civil injunctions that have evolved to deal with the intricacies of family situations.

In the usual course of proceedings, a person petitions for an Emergency Order of Protection. At the hearing to request the Emergency Order of Protection, they have to establish that there is an immediate and present danger of harassment or abuse to the petitioner. The court has to find that the petitioner has been abused or harassed by a family or household member. The abuse does not have to be physically evident. Ultimately the Order of Protection orders the Respondent not to harass, interfere with personal liberty, intimidate, physically abuse or willfully deprive. The Order of Protection also includes a stay away order. Petitioners can ask for exclusive possession of a residence, possession of personal property, and prohibitions, such as forbidding the destruction of property or the removal or concealment of a child or preventing access to records. It can include the protection of animals and thand will include the turnover of any firearms.

However, an Emergency Order of Protection may not include the counseling, legal custody, payment of support or monetary compensation.

The Petitioner must file a verified complaint for an Emergency Order of Protection and a judge must find that there is cause not to afford the Respondent notice of the request for Emergency Order of Protection. If the judge grants the Emergency Order of Protection, the maximum time for its existence is 21 days. During that period, a hearing must be held for either an interim order of protection or a plenary order of protection. The Respondent must be served with notice of the Emergency Order of Protection in order for it to be in force. Interim Order of Protection can only be entered for periods of 30 days.

The Plenary order of Protection is an injunction and court order that will last up to two years. In addition to the remedies available through an Emergency Order of Protection, a Plenary Order of Protection can also order counseling, custody of a minor child, payment of support, reimbursement of financial losses related to the abuse.

If you are served with an order of protection, speak with an attorney immediately. While the order of protection is a civil injunction, it carries very serious criminal penalties if the provisions are violated. You are subject to arrest for violating an Order of Protection–even if, for example, the Petitioner calls you! You need to understand what the order tells is prohibiting you from doing. And you need to understand the consequences of not following the Order of Protection.

There are several ways that an attorney can try and defend or undo an order of protection. Since it is a civil proceeding, you are entitled to a hearing where rules of evidence apply. While the process is often informal, keep in mind that the Petitioner likely has an advocate guiding him or her through the process. You should have an advocate as well that can attack the allegations in the temporary order of protection. Remember, the Emergency Order of Protection is a verified petition and the Petitioner has to swear that the things he or she is saying in it are true. A skilled attorney can often demonstrate that the allegations are not accurate. They can also prevent a Petitioner from overreaching if, for example, the Petitioner seeks to include children in the order when they should not be in included.

Another way that an attorney can help is to incorporate an Order of Protection into a family law proceeding. Often times Petitioners take advantage of an Emergency Order of Protection to obtain property rights that should be dealt with through other avenues.

The attorneys at Harter & Schottland are skilled defense attorneys and experienced litigators that can help you in the face of an Order of Protection. Consultations are free. If you are served with an Order of Protection, call immediately since time is of the essence.

For a complete reading of the law applicable to Orders of Protection, click here.

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