Victims of domestic and family violence, victims of sex offenses and victims of stalking have recourse in both the civil and criminal courts.  Often, the need for a protective order arises from the same incident in which the defendant is also facing a criminal charge.

The process begins with the filing of a petition for a protective order and a request for hearing.  This can be done with an attorney or ex parte (by the petitioner), or on the behalf of a minor.  Upon filing the petition for a protective order and hearing, a hearing for an ex parte order is scheduled.  Because the need for protection is often immediate, the hearings are usually conducted the same day.

Several findings must be made at this initial hearing but the standard the court uses to review such requests is lower than that of a criminal case.  It must be first shown that there is a qualifying relationship between the petitioner and the respondent (the person against the order you are seeking).  These “relationships” include married and/or divorced, dating or prior dating relationship, involved in a sexual relationship, those having a child in common, or those related by blood, marriage or adoption.

Under the Indiana Code, if it appears from the petition for an order of protection that domestic or family violence has occurred a court may, without notice or hearing, immediately issue an order for protection ex parte.  The court may grant relief without notice and hearing in an ex parte order for protection, and:

• Enjoin respondent from threatening to commit or committing acts of domestic or family violence against a petitioner and each designated family or household member.
• Prohibit a respondent from harassing, annoying, telephoning, contacting, or directly or indirectly communicating with a petitioner.
• Remove and exclude a respondent from the residence of a petitioner, regardless of ownership of the residence.
• Order a respondent to stay away from the residence, school, or place of employment of a petitioner or a specified place frequented by a petitioner and each designated family or household member.
• Order possession and use of the residence, an automobile, and other essential personal effects, regardless of the ownership.
• Order other relief necessary to provide for the safety and welfare of a petitioner and each designated family or household member

If the court makes a finding that domestic or family violence has occurred, this means that the respondent represents a credible threat to the safety of the petitioner or a member of a petitioner’s household.  Upon a showing of domestic or family violence by a preponderance of the evidence, the court will grant relief necessary to stop the violence.

After an ex parte protection order is granted, a copy is then served on the respondent and he/she is given the opportunity to be heard.  Upon a request by either party, the court sets a hearing date.  The hearing must be held not more than 30 days after the request for hearing is filed.

Effects of the Order

An effective protection order mandates that the respondent have no contact with the petitioner unless the portion of the protection order regarding contact is modified.  The order will list the protection for the petitioner based on the court’s findings and the petitioner’s needs.  The order may also serve to protect other parties.

An order for protection issued ex parte or upon notice and hearing is effective for 2 years after the date of issuance.  If necessary, after the 2 years a petitioner can file for an extension of the protection order.

Although these types of orders can be obtained without an attorney, they can also get dismissed for failure to show the necessary requirements to obtain them.  It is important to have an attorney who understands your need for protection and can adequately convey that to the court to obtain the protection you need.  An attorney will understand the court procedure at the hearing and be able to walk you through each step in the process.  Attorney Christopher L. Arrington can be your advocate.  If you are in need of a protective order and want legal assistance, please contact our office today.