Order of Protection in Tucson
If you have ever obtained an Order of Protection or had one taken against you, you will realize the ease with which they are issued.
As a matter of public policy, our government has intentionally streamlined the process of obtaining an Order of Protection. The reasoning behind that policy is that the circumstances supporting the issuance of such orders will frequently arise suddenly and require immediate action to protect an individual from violence. If the process were too complicated or too lengthy, it is feared that the protection offered would arrive too late.
What is an “Order of Protection” and why does it have “domestic violence” associated with it? An Order of Protection is an order of the court that prevents contact between persons that have a certain relationship. That relationship is usually familial one but can also extend to other persons. You can find the exact descriptions of the relationship test at A.R.S. §13-3601(A) or the Arizona Rules of Protective Order Procedure, Rule 6 (C)(3)(b). If you wish to review those requirements, you’ll find them here. Because the protected person has a certain relationship to the person obtaining the order, it is addressed under the overall heading of “Domestic Violence.” The person getting the order is called the Plaintiff and the person the order is taken against is the Defendant.
Anyone can obtain an Order of Protection. You can get one through either limited jurisdiction courts (justice courts or city courts) or the Superior Court. If you have an active Family Case in the Superior Court, any Order of Protection will be consolidated into that case. Orders of Protection are requested and issued on standardized forms.
In the petition (request for the order), the Plaintiff will be required to assert any acts of domestic violence that have occurred in the last 12 months or establish a substantial likelihood that an act of domestic violence will occur unless an order is issued. The orders are normally issued ex parte. That means that the Defendant will not be there and the court will only hear from the Plaintiff. Obviously that’s one-sided and Due Process demands that the Defendant have the right to be heard by the court. After the order is issued it must be served. No order is effective against a Defendant until and unless it is properly served on him/her. Usually, law enforcement officers will serve the orders so, if you have obtained one and are waiting for service, be sure to keep an extra copy with you. If the Defendant should then come near you, you can call law enforcement officers and they will usually serve them on the spot. These are valid orders until changed by the court!
Common mistakes are to ignore the order under the impression that the allegations in the petition are false or because “I wasn’t in court!” Neither of those excuses are valid reasons to ignore a court order and could see you charged with the crime of “Interfering with Judicial Proceedings.” It doesn’t matter if the order is later dismissed, it is valid until the judge dismisses it or it expires on its face. Orders of Protection are valid for one year. Another common mistake is to speak to the Plaintiff on the telephone. The Order of Protection prevents the Defendant from contacting the Plaintiff, not the other way around. Frequently, the Plaintiff will “play a game” on the Defendant and call him/her. Although the Plaintiff in such situations is ignoring the spirit of the Order of Protection, they are not violating its terms. Once the Defendant knows who is on the phone, if they continue to speak to them, Defendant is in violation of the order if that order commands there be no contact! The violation of Orders of Protection usually result in jail time, so be very careful and obey whatever the order says!
Of course, as stated previously, Due Process demands the Defendant be afforded the right to be heard by the court. If you are served with an order or have had one served, be aware that the court will likely set a hearing on that order within ten (10) days of a request. If you are the Plaintiff, you must be there or the order will be dismissed. If you are the Defendant, you will need to be prepared to show why the allegations of the petition are incorrect or that no act of domestic violence has occurred in the last twelve (12) months or is not likely to occur. The burden of proving the case is placed on Plaintiff, so Defendant may not even have to put on evidence. There will only be one hearing on the order, so be prepared! After the initial hearing, if the order is left in place, the only other hearings that the court will allow will be by agreement of the parties.
Should you request a hearing? That depends. . . First, do you care to have contact with this person? Second, does the order prevent you from possessing firearms or ammunition? If you are an avid hunter, you need to be aware of this issue. If the initial order does not have the firearms prohibition, you may not want to ask for a hearing. If you go to a hearing and the order is upheld, the prohibition on firearms is almost automatic and you will not be permitted to possess either firearms or ammunition until the order expires. Consider if you really want a hearing before asking for one.
What should I do at the hearing? First, review the petition. If you are the Plaintiff, make sure you are prepared to prove the allegations you made. You will also want to be prepared to prove any other incidents of domestic violence in the last twelve (12) months that you may have omitted from the original petition. Bring your witnesses! The same can be said for the Defendant. You will have at least a hint of what the Plaintiff is alleging, so you should be prepared to show the allegations are untrue. You will usually be afforded either a half hour or a full hour for your hearing. This is a court proceeding, so make sure you are properly dressed and be prepared to behave in a proper manner.
Should I get an attorney? If you are unclear on how the Order of Protection impacts you or what behavior is prohibited, get an attorney on your side! In addition, if you have children or property that will be impacted by the order, you will really want an attorney to advise and represent you. Many people ignore Orders of Protection and suffer the consequences. Don’t be one of them! Seek the advice of an attorney and comply with whatever the order contains until it is specifically changed by a judge! The Plaintiff cannot change the order! It is not “okay” for the two of you to decide that you will just not enforce the order. Ignoring the order is a crime and is always punished. Orders of Protection can negatively impact your relationship with your children and will often cause you financial loss. Get an attorney on your side!