Civil Protection Orders

By Catherine F. Klein and Leslye E. Orloff

 

[Editor’s note: The following is reprinted from the AMERICAN BAR ASSOCIATION COM­MISSION ON DOMESTIC VIOLENCE, THE IMPACT OF DOMESTIC VIOLENCE ON YOUR LEGAL PRACTICE: A LAWYER’S HANDBOOK 4-1 to 4­5, 4-7 (Deborah M. Goelman et al. eds., 1996). Reprinted by permission. Copyright © 1996 by the American Bar Association.]

 

Civil protection orders are available to domestic violence victims by statute in all fifty states, the District of Columbia, Puerto Rico, and all U.S. territories. Civil protec­tion orders that are properly drafted and consistently enforced can offer effective protection for victims of domestic vio­lence. In most jurisdictions, protection orders offer broad relief and may be used with or instead of more traditional domes­tic relation remedies. Protection orders can also offer crucial protection against continued violence for victims who are not ready to separate from their abusers.

 

There are two types of protection orders available to victims of abuse. Most states authorize emergency, or temporary orders of protection, issued after an ex parte hearing if the victim can show that there is immediate danger of future vio­lence. Such orders are short-lived (typically fourteen to thirty days) and are intended to protect victims of domestic violence until a full hearing can be scheduled. Courts also issue protection orders after a full hear­ing, by consent, or by default. Full pro­tection orders are of a longer duration, typ­ically for one to three years. The National Council of Juvenile and Family Court Judges recommends that protection orders last indefinitely. Progressive jurisdictions are adopting this approach.

 

Obtaining a Protection Order

 

Generally there is no statute of limitations within which a victim of domestic vio­lence must file for a protection order. Some courts, however, may not grant an order if the most recent threat or incident of abuse took place several months prior to the filing of a petition for a civil pro­tection order.

State statutes and case law define the relationship required between the parties in order to be eligible for protection. The types of relationships protected include

 

• current or former spouses;

 

• family members who are related by blood or marriage (i.e., parents, siblings, aunts, uncles, grandparents, and in-laws);

 

• current or former household mem­bers;

 

• persons who have a child in com­mon;

 

• persons in dating or intimate rela­tionships; and

 

• persons in same-sex relationships.

 

 

A few trend-setting states allow pro­tection orders to be issued to persons who offer refuge to victims of domestic violence. States condition the issuance of a pro­tection order on an underlying act of abuse which constitutes a criminal act, including battery, assault, kidnapping, burglary, criminal trespass, interference with child custody, rape and sexual assault, interference with personal liberty, and stalking. Some states authorize the issuance of protection orders for behav­ior that has not physically harmed the petitioner (e.g., emotional abuse, threats, stalking, and destruction of property, including harm to pets).

 

Most jurisdictions allow an abused adult to file on the adult’s own behalf. Most states allow an adult to file on behalf of a child or an incompetent adult. Some progressive states allow minors to peti­tion for protection on their own behalf.

 

Jurisdiction for protection orders gen­erally exists in the state where the under­lying acts of abuse have taken place or where the victim is present.

The federal Violence Against Women Act of 1994 affords full faith and credit to a sister state’s protection order (including an ex parte order) as long as due process requirements were met in the issuing state./1/. . .

 

 

Relief Available

 

Be careful to include all forms of relief necessary to protect the victim. Gaps in the relief provided or a lack of specifici­ty in the drafting of the order can lead to future violence and make enforcement of the order difficult if not impossible. Be­cause batterers often are also abusive to the petitioner’s children, be mindful to include the children specifically by name in all appropriate provisions.

 

Courts have broad authority to issue any form of relief that may deter violence. Orders need not be limited to only those forms of relief listed in the state statute. Be creative: ask for all the relief you think is necessary.

 

Ask the victim about the entire histo­ry of abuse (e.g., most recent incident, first incident, and worst incident), places that the victim frequents, and ongoing issues requiring resolution, such as the batterer’s behaviors that need containment.

 

The following is a checklist of relief generally available in jurisdictions, as deter­mined by statute, under general catchall phrases or by case law. The practitioner should carefully consider and discuss fully with each client the following options:

 

 

• The respondent shall not molest, assault, harass or in any matter threaten or physically abuse the petitioner or the petitioner’s child or children or all of them. Protection orders should always include a “no further abuse” clause; otherwise en­forcement through contempt or criminal prosecution will be very difficult. Word the clause clearly so that the abuser knows specifically which types of actions are forbidden.

 

• The respondent shall stay 150 yards away from the petitioner’s home, person, workplace, children, place of worship, and day care provider. Define clearly what places the respondent is forbidden to go. Include in the “stay away” provi­sion all locations frequented by the peti­tioner. If the petitioner is in hiding, the order should prohibit the respondent from going to the petitioner’s residence without revealing its location and pro­hibit the respondent from attempting to locate the petitioner either directly or through third parties. The order may also provide for a minimum distance that the respondent must keep from the petition­er and other listed locations and persons.

 

• The respondent may not contact peti­tioner or petitioner’s children or all of them in any manner—personally, in writing, by telephone, or through third parties. Batterers frequently adopt less violent, harassing behaviors following the is­suance of a protection order. Their intent is to continue to assert power and control over the victim in a manner less likely to draw the attention of legal or law enforce­ment authorities. This provision will fore­stall such behavior.

 

• The respondent shall vacate the resi­dence at (location) by (date and time). The (local) police department shall stand by and shall give respondent fifteen minutes to collect respondent’s personal belongings. Personal belongings include clothes, toi­letries, and one set of sheets and pillowcas­es. No other property may be removed from the premises without the petitioner’s per­mission. The police shall take all keys and garage openers from respondent, check to see that they are the rights ones, and then turn keys over to petitioner. Vacate orders require the respondent to leave the home shared with or owned by the petitioner and must specify how the vacate order is to be carried out. Include additional pro­visions prohibiting the respondent from reentering the home and ordering respon­dent to surrender all keys, refrain from damaging the premises or property, and refrain from shutting off utilities or dis­continuing mail service.

 

• The respondent shall relinquish pos­session and/or use of the following per­sonal property (list specifically itemizing property in question) as of (date and time). The court may order the respondent to relinquish certain items of personal prop­erty or restrain respondent from taking, selling, or destroying certain personal prop­erty. If the protection order has a vacate provision, the respondent may be appro­priately ordered to relinquish use of all the property except for personal belongings and any enumerated items. If both parties have vacated the home, the order should clearly state which items the respondent may remove from the family home.

 

• As of (date and time), the respondent shall turn over to the (local) police depart­ment any and all weapons that the respon­dent owns or possesses and all licenses the respondent has authorizing the possession of or purchase of weapons. The court may prohibit the respondent from possessing any weapon or firearm or revoke the respondent’s weapons license or prohib­it the respondent from purchasing or receiving a weapon for the duration of the protection order. The court may also order the local police to search for and confiscate weapons when they assist on a vacate order or are called for assistance. Courts should require the respondent to submit a receipt proving that the weapons were relinquished as ordered.

 

• The respondent shall participate in and successfully complete the following (counseling program). Courts may order appropriate treatment for respondents including intervention counseling or sub­stance abuse counseling for the batterer. Only treatment programs which have been certified as having specific expertise work­ing with domestic violence perpetrators should be used. Joint or family counseling is inappropriate where there has been domestic violence. Substance-abuse treat­ment alone is insufficient to address bat­tering behavior.

 

• Temporary custody of the minor chil­dren is awarded to petitioner until fur­ther order of this court or the expiration date of this order. Include a custody order as part of a protection order whenever children are involved. Even when chil­dren have not been abused themselves, children living in homes where there is violence are, studies show, adversely affected./2/

 

• The respondent has rights of visitation with the minor child(ren) under the fol­lowing conditions (specific requirements). Craft a visitation arrangement that ensures the safety of the petitioner and the chil­dren. The National Council of Juvenile and Family Court Judges recommends against unsupervised visitation until the abusive parent successfully completes a domestic violence treatment program and, if warranted, a substance-abuse treatment program. Supervised visitation can be arranged through either an approved third party or a local supervised visitation cen­ter if available. If the petitioner believes that visitation need not be supervised, the order should clearly provide when, where, and how visitation is to take place. Particularly if there is a “stay away” or “no contact” provision, the order should arrange a drop-off and pickup, such as a relative’s home, that does not result in contact. If this is not possible, exchange of the children should take place in a pub­lic place such as a museum, McDonald’s, or a local police precinct. If there is no reasonable way that the petitioner or the children or all of them can be safe during visitation, request that visitation rights be suspended until further order of the court. Be prepared to show the judge why vis­itation is not feasible and argue that con­tinued conflict between the parents is not in the child or children’s best interest.

 

• The respondent shall pay child sup­port for (minor child) in the amount of (dollar amount) biweekly. Victims who have a minor child with the respondent may be entitled to child support. Use the child support guidelines to determine the amount of the award and make certain that child support orders are paid through wage withholding so that the respondent cannot use child support payments as a coercive tool.

 

• The respondent shall pay for the repair of the door to petitioner’s apartment and all costs associated with the changing of petitioner’s lock and all medical expenses the petitioner incurs as a result of respondent’s violence. Courts may order the bat­terer to provide monetary relief to the vic­tim. Victims may be entitled to reimbursement for economic losses, including: medical costs, repair of dam­aged property, attorney fees, and court costs. Respondent also may be ordered to continue paying health insurance for the victim and the child or children.

 

• The (local) police department shall assist the petitioner in enforcing the order and shall pay special attention to calls for assistance from petitioner or (petitioner’s

  address) or both. Request police assistance to transport the petitioner to a shelter, accompany the petitioner home, serve process, and assist on vacate orders, or orders dealing with the relinquishment of personal property and weapons. . . .

 

 

Mutual Protection Orders

A mutual protection order is one that is entered against both parties; it requires both parties to abide by the restraints and other forms of relief in the order. Batterers often file false petitions for civil protec­tion orders (in addition to false criminal charges) after victims take legal action against them. Some batterers do not file petitions but allege during civil protec­tion order hearings that they have been abused. Under these circumstances, courts may issue mutual protection orders in the mistaken belief that such orders will pre­vent future violence against either party. However, when mutual protection orders are entered against innocent victims, both batterers and victims learn that the sys­tem can be manipulated and that courts are unwilling to determine who has been abused and order appropriate protection.

 

Mutual protection orders are not afforded full faith and credit under the Violence Against Women Act of 1994 unless the following safeguards are met:

(1) a petition articulating grounds forissuance of such order was filed; (2) the person against whom the order was entered was served with notice of the petition; (3) the person against whom the order was entered had an opportunity for a hearing before a court, and (4) the court made specific findings that each party was entitled to such an order./3/

 

Be wary of mutual orders entered against the petitioner without the respon­dent filing a petition, presenting evidence of abuse, and obtaining a court ruling that your client committed an offense of domestic violence. Orders of this kind vio­late the petitioner’s due process rights and should be opposed./4/

 

 

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Catherine F. Klein is associate professor, Catholic University of America School of Law, 3600 John McCormack Rd. NE, Washington, DC 20064; 202.319.5140. Leslye E. Orloff is an attorney, NOW Legal Defense and Education Fund, 1522 K St. NW, Suite 550, Washington, DC 20005; 202.326.0042; lorloff@nowldef.org.

 

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1 Violence Against Women Act of 1994, 18 U.S.C. § 2265. See also Susan B. Carbon et al., Enforcing Domestic Violence Protection Orders Throughout the Country: New Frontiers of Protection for Victims of Domestic Violence, in this manual.

 

2 See, e.g., HOWARD A. DAVIDSON, ABA (AMERICAN BAR ASSOCIATION) CTR. ON CHILDREN & THE

LAW, THE IMPACT OF DOMESTIC VIOLENCE ON CHILDREN: A REPORT TO THE PRESIDENT OF THE

AMERICAN BAR ASSOCIATION (1994).

 

3 18 U.S.C. § 2265 (c)(1)(2) (1994).

 

4 See Catherine F. Klein & Leslye Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 HOFSTRA L. REV. 801, 1074–78 (1993).

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