Orders For Protection As It Relates To Family Law Matters Explained
In this article, you will learn:
- Important information about orders of protection (OFP)
- How Ex Parte Orders can be used
- How these orders can affect custody
An Order For Protection (OFP) is a document that a party experiencing domestic abuse can file either on their own behalf, on behalf of their children, or both. An OFP is a very powerful document, and it’s also something that runs on an expedited timeframe in terms of getting to a resolution. So you can go from filing for an OFP to having a hearing, and getting a decision on the hearing may be on the same day and definitely within 21 days. The process has two parts. And then, it depends on the request of the petitioning party. There could be an ex-parte order, which is an order that’s temporary and issued on an emergency basis. Those orders focus on incidents of recent domestic abuse to the exclusion of others. The one exception to that is a case that happened on January 30th, 2018, that came out of the Supreme Court. And the Supreme Court interpreted the statute for domestic abuse to have a two-year look-back period for emotional and psychological abuse incidents.
But it changed the way we look at physical abuse so that even for an ex-parte or an emergency order, if there was an incident of physical abuse at any point in time, it can now be considered, no matter how far back it goes, for an emergency application for an OFP order. Currently, there are some practical limitations to how effective that might be for getting an emergency order, and it might just require that you go to a hearing and have a permanent order instead, but that’s this first part of the process where you’re asking the court for an emergency order. You will get the order, and then it gets served to the other side. Either they have to ask for a hearing date because nothing has been requested by the petitioner that automatically triggers the hearing; for instance, child support would be an automatic trigger. But if these things aren’t requested, then it’s left to the respondent to say, “No, I disagree with this, and I want a hearing.” If they don’t respond, if they don’t ask for a hearing, then the ex-parte order after a passage of usually ten days will become a permanent order for a period of up to two years. You go to an evidentiary hearing if they do respond, which is basically a mini-trial. The court will decide based on the information they presented and why they issue a permanent order for some period of time, or it will dismiss the case.
Ex Parte Orders
An Ex Parte Order is simply an OFP order issued on an emergency basis. The scenario would be this. Let’s say a mother/child is experiencing domestic abuse at home, whether it be physical, emotional, and/or psychological. If it reaches a point where the mom feels that she’s not safe or the child’s not safe, she then asks for protection. So that first request often includes a request for an emergency order or an order for protection. And ex-parte just simply means of one side, so you have the petitioner who is giving out all the information that they can to the court on their own with no feedback from the respondent at this point, and the court’s making a decision based on the declarations of one party for the sake of that emergency order.
The emergency order itself is based on the content of the supporting documentation and, most importantly, the affidavit supporting the request for an order for protection drafted and submitted by the petitioner. The court evaluates that, looks to see if there’s an emergency that requires immediate intervention, and it’ll make a ruling either for or against an ex parte order. Typically speaking, if the couple is still living together and there’s fear about additional abuse, the court will grant an order for protection, the other side will be excluded from contact, they’ll be excluded from being in the home, and they will have to decide whether or not they want to go an evidentiary proceeding or not.
In Minnesota, it is a state law that a party who has experienced domestic abuse and receives an order for protection cannot be excluded from their home. They have to be allowed to stay, and it’s to the exclusion of the other side. So often, that ends up coming up in divorce scenarios. It comes up in pre-divorce scenarios. I believe I have five orders for protection cases right now in different stages, and they tend to be regrettably familiar aspects of the family law landscape. But that’s again where a good attorney and good drafting can help produce results and move the court in a particular direction in favor of your client, and that’s what I do.
How Custody Or Parenting Time Is Affected When Orders Are Out?
What happens is custody and parenting time on an emergency order will largely follow whatever the petitioner asks for. And they have the power to craft some very substantial outcomes. For instance, they could be asking that there be no contact between the other parent and the children involved with the OFP. They could ask for supervised visitations only and then maybe once a week or once a month. They could ask for temporary sole legal and physical custody. They will be likely to get it if they’re granted the OFP, and that could become a permanent decision for up to two years if the other side either doesn’t appear at a hearing, and the court finds that the petitioner isn’t credible, so it’s going to grant some of those requests.
I’ve heard orders of protection often described as a poor man’s divorce because they can handle so many aspects of divorce. Still, it does this in less than a month instead of several months to maybe a year or longer, depending on how high conflict the scenario is. So they are compelling documents. And because of that, it’s essential to treat them with deference and considerable respect, at least that’s what I do because an OFP has a potential to be a very corrosive, very damaging sort of circumstance to the satisfaction of the divorce case, assuming that both are coming through at the same time. So it’s just an incredibly powerful thing that as a citizen of Minnesota and as an attorney, I’m glad it’s there, but as a practitioner, I only want to use those when they’re absolutely necessary. So when that moment comes, and I’m putting all of my resources into that OFP, everything I do is going to be about that OFP from that point forward because it’s so determinative and so powerful that anything short of complete attention to it can be dangerous, and any missed details could be potentially problematic. For that reason, that’s why it’s really important to know what you want going into an OFP. It is essential it is backed up with some kind of evidence, whether it’s witnesses, police reports, text messages, or anything else, just to take it out of the context of a court having to rely exclusively on character assessments and start looking at behaviors because we know the picture is worth a thousand words and some of those words can be nasty. If those words get nasty, and you can show the court that, that begins to increase your client’s credibility to the detriment of the other.
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