Protective Orders

AuthorRichard Leiter

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Protective orders are typically used in domestic disputes to ban one party from contact with another or from interfering with an order of the court with respect to child visitation or custody rights. They are also frequently used in cases of spousal abuse to keep the violent party from coming into contact with the victim. Protective orders are usually temporary measures that the court uses in order to remedy suspected destructive activity while the parties gather and present evidence showing that a more permanent remedy is required. Protective orders may sometimes be granted ex parte, that is without the presence of the party being effected, but only when there is substantial evidence that the party applying for the order is under an imminent threat of injury or when there is good evidence that an order of the court will be violated.

Protective orders have a wide range of temporary duration. Typically, they last for one year with extensions possible under certain particular circumstances. Nine states allow imposition of protective orders for up to three years, and New Mexico limits them to just 6 months. Ohio has enacted a law that sets the duration of a protective order at five years, the longest of any state. Violations of protective orders also vary widely. Although most states impose a maximum one year sentence and a $1,000 fine, three states require mandatory jail time for violating a protective order.

Virtually all states require transmission of protective orders to local law enforcement agencies. Ten states require transmission within 24 hours. A few states have set up state-wide registries or information systems that keep track of protective orders that are presently in effect. Utilization of technology, such as the internet, and wide area networks, permit easy access to statewide registries. In Iowa, for example, it is required to get certified copies of protective orders into the hands of law enforcement agencies within six hours of issuance.

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Table 32: Protective Orders
Code Section Activity Addressed by Order Duration Penalty for a Violation of Order Who May Apply for Order Fees Waived? Transmission to Law Enforcement Civil Liability
30-5-1, et al seq. Enjoining contacts of abuse; harassing communication; excluding party from dwelling, school or place of employment; regarding minors: award temporary custody and establish visitations as well as temporary support; enjoin defendant from interfering; direct law enforcement to accompany plaintiff to residences to protect from abuse Up to 1 year, can be amended at any time upon verified petition by either party Willful violation: Class A misdemeanor, fine not to exceed $2,000 and/or jail up to 1 year; 2nd conviction: 30 days unsuspended jail sentence, and 1/3 incarceration costs and fine; 3rd or subsequent: 120 days unsuspended jail sentence and 1/3 incarceration costs and fine; 2nd conviction: in addition to permissible fine, minimum of 48 hours continuous imprisonment which may not be suspended; 3rd or subsequent conviction: minimum sentence of 30 days imprisonment, can’t be suspended An adult for themselves or another person prevented by physical or mental incapacities or on behalf of minor children No court costs shall be assessed for filing, issuance, registration, or service of a protective order or petition order or for a witness subpoena under this chapter. Costs may be assessed against the defendant at the discretion of the court §30-5-5(f) Copy issued to law enforcement officials with jurisdiction to enforce the order or agreement Civil contempt

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Code Section Activity Addressed by Order Duration Penalty for a Violation of Order Who May Apply for Order Fees Waived? Transmission to Law Enforcement Civil Liability
repealed 18.66.100-18.66.180 Enjoining contacts of domestic violence, communication or entering a propelled vehicle occupied by or possessed by party; excluding party from dwelling, award temporary custody; prohibit respondent from using or possessing weapons; request peace officer accompany petitioner; award custody; prohibit respondent from consuming controlled substances; pay costs Until further order of court for threats and acts of domestic violence 6 months for other acts Possible misdemeanor, up to 1 year in jail, up to $5,000 fine Adult or minor through guardian ad litem or attorney On the basis of indigency. No filing fees Copy of order transmitted to appropriate local law enforcement agency
13-3602 Enjoined from committing acts of domestic violence; excluded from dwelling, place of employment, school; participation in domestic violence counseling; prohibition from possession of a firearm 1 year; a modified order expires 1 yr. after service and the initial order and petition Arrest and prosecution for the crime of interfering with judicial proceeding and any other crime committed in disobeying the order Person or other if person is either temporarily or permanently unable to request an order; if minor, legal guardian A fee shall not be charged for filing a petition under this section or for service of process §13-3602(D) Within 24 hours after acceptance of service or affidavit has been returned; copies sent to sheriff’s office in the county in which plaintiff resides Civil contempt

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Code Section Activity Addressed by Order Duration Penalty for a Violation of Order Who May Apply for Order Fees Waived? Transmission to Law Enforcement Civil Liability
9-15-201, et. al seq. Exclude from dwelling, place of business or employment, school; award temporary support and custody; establish visitation; enforce costs; prevent direct or indirect contact Minimum 90 days, maximum 2yrs.; may be renewed. Temporary order: maximum 30 days Class A misdemeanor: maximum penalty 1 year imprisonment in county jail or maximum fine of $1,000 or both Family or household member or on behalf of a family or household member who is a minor or adjudicated incompetent, or an employee or volunteer of a domestic violence shelter or program on behalf of a minor, including a married minor—§9-15-201(d) Yes Copy issued to law enforcement officer with jurisdiction to accompany petitioner in possession of dwelling or otherwise assist in service of order Civil contempt
Family Code 6240, et seq.; 6320, et seq.; Penal 273.6 Enjoining contact; excluding from dwelling; enjoining specific behavior; regarding minor child: custody, visitations. Penal code: any person who has domestic abuse perpetrated against him/her as shown by affidavit of reasonable proof Emergency order: the earlier of the close of the 5th business day after issue or 7 calendar days. Others: 3 year maximum unless extended by office or parties stipulate to permanent order 1 year and/or $1,000; with physical injury: $2,000 or 30 days to 1 yr. in jail or both; subsequent conviction: $2,000, 6 mos.-1 yr. jail, or both, or state imprisonment Spouse, cohabitant, fiancé/ fiancée, parent of one’s child, blood relations. By the close of business on day of issuance; local law enforcement agency must notify Department of Justice for domestic violence protective order registry

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Code Section Activity Addressed by Order Duration Penalty for a Violation of Order Who May Apply for Order Fees Waived? Transmission to Law Enforcement Civil Liability
14-4-101, et seq.; 18-6-803.5 Enjoin contact; exclude party from dwelling or dwelling of another; regarding minor child: temporary custody; Emergency order: restrain from threatening, molesting, injuring, or contacting another or minor children of either; excluding from dwelling, if minor child, temporary custody Emergency: maximum close of business on 3rd day following issue, unless continued Class 2 misdemeanor unless prior conviction under § or other restraining order: Class 1 misdemeanor No Law enforcement agency with jurisdiction to enforce the order Contempt of court
46b-15, et seq. Regarding minor children: temporary custody, visitation; enjoin contact; exclude from dwelling of family or of applicant; threatening, harassing assaulting, molesting sexual assault 6 months unless extended Criminal trespass: in 1st degree, for entering or remaining in dwelling. Maximum penalty up to 1 year in jail or up to $2,000 or both Family or household member subjected to a continuous threat of physical pain or injury; person in a dating relationship who is subjected to continuous threat of physical injury The cost of such service shall be paid for by the judicial branch—§46b-15(e) Yes; immediately; appropriate law enforcement agency within 48 hours of issuance if employed in another town Contempt of court

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Code Section Activity Addressed by Order Duration Penalty for a Violation of Order Who May Apply for Order Fees Waived? Transmission to Law Enforcement Civil Liability
Tit. 10 § 1041, et seq. Enjoin contact; exclude from dwelling; regarding minor children: temporary custody, visitations, support; prohibit use/ possession of firearms or disposal of property; award monetary compensation to petitioner; counseling; restrain from committing acts of domestic violence Ex parte order: maximum 30 days. General order: maximum 1 year unless extended Class A misdemeanor and imprisonment or fine or both Member of a protected class on behalf of self and their minor child or an infirm adult Order entered into Delaware Justice Information system on or before the next business day; copy sent to Delaware law enforcement agency where petitioner resides and/or where abuse received Contempt
16-1001, et seq. Enjoin contact; order counseling; exclude from dwelling and possession of other personal property; regarding minor children: temporary custody, visitations award court costs and attorney fees to petitioner Temporary protective order: maximum 14 days. General protective order: maximum 1 year unless extended Misdemeanor: fine, maximum $1,000 and/ or imprisonment: maximum 180

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