Obtaining a protective order to keep someone away who one believes means one harm is a serious step that should not be taken lightly, and is often a precursor to divorce. If violence is occurring, a protective order is an important tool to maintain safety, but it does significantly impinge on the rights of the person alleged to have engaged in or threatened harm. While the procedure for acquiring a protective order is civil, the potential consequences for alleged violations of the terms of the protective order can be criminal. Given the seriousness of these orders, courts are supposed to carefully assess whether the person petitioning for protection is in real danger, and only restrict contact between the two parties to the extent necessary to secure the petitioner’s safety.

An overly broad protective order can present significant issues if children are involved, which may require allowing some contact to facilitate the transfer of custody. Thus, the restrictions on contact are set on a case-by-case basis, and can be modified if the initial terms are effectual to secure the petitioner’s safety. Both the petitioner and the person accused of causing harm have an interest in understanding the types of restrictions a court can impose, and when it may modify the original protective order. An overview of these issues will follow below.

Types of Restrictions a Court Can Impose

Protective orders are principally issued in connection with domestic violence, which involves harm or threats of harm between family or household members. As a result, the protective order is designed to prohibit the parties from staying in the same residence and from having any form of contact, outside of potential exceptions that will be discussed below. To that end, protective orders almost universally include the following restrictions:

• Prohibiting the person accused of violence from future acts against the petitioner and/or his/her family;
• Prohibiting all forms of contact and communication, both direct and indirect, including telephone, email and written letter; and
• Ordering the accused person to stay away from the petitioner’s home, work, school, child’s school or other place frequented by petitioner and/or his/her family.

In addition, the court, upon the petitioner’s request, can also order the following to facilitate the implementation of the protective order:

• Evicting the accused from the family residence; and
• Ordering the accused to turn over the family residence, car or personal items.

The restrictions noted above can be included within an emergency temporary protective order, subject to a hearing to be held within 30 days, but other provisions cannot be ordered until after the hearing when the court decides whether to make the protective order permanent. These additional terms include:

• Establishing a parenting time schedule, imposing supervised parenting time, or completely denying parenting time – if parenting time is granted, the practical outcome is the parties will need to have some contact to exchange the child, which is an example of a situation where a court will slightly relax this restriction;
• Ordering the payment of child support, spousal support or attorney fees; or
• Ordering reimbursement for expenses related to the violence, such as medical costs, counseling, repair or replacement of property and shelter.

Modifying a Protective Order

Once a protective order is issued, the party seeking protection has the option of asking for a modification if he/she believes the danger is still present. Before a court can modify a protective order, it must find that the accused is:

• Doing;
• Threatening;
• About to do; or
• Arranging to be done

some act that violates the petitioner’s rights, i.e., violating the protective order. Without this analysis, the court is not permitted to take action. Further, the underlying protective order must be based upon a finding by the judge that domestic violence occurred. An Indiana court of appeals recently sent a case back to the trial court for further consideration after finding it did not adequately establish domestic violence occurred when it issued the initial protective order.

Get Help

Both victims and those accused of domestic violence need the advice of an experienced family law attorney to protect their interests and understand the implications of addressing this issue in the court system. Christopher L. Arrington has extensive experience and handles a variety of family law issues, including divorce and child custody. Contact his Danville office today to schedule an appointment.