Orders of Protection

ORDERS OF PROTECTION

  • Order issued by the court in order to prevent someone from committing an act included in domestic violence defined in Arizona Revised Statutes 13-3601(a).

  • The order of protection also can only be issued against specific individuals-“Familial Relationship”

  • Recipient order must be in some form of a familial relationship with the opposing party.

FAMILIAL RELATIONSHIPS

  • A parent of your child (either born or pregnant with)

  • Lives or has lived with you in the same household

  • Related by blood or court order as your parent, grandparent, child, grandchild, brother, or sister

  • Related by marriage as your parent-in-law, grandparent-in-law, stepchild, step-grandchild, brother-in-law, sister-in-law, stepparent or step-grandparent

  • A person who resides or who has resided in the same household with a child. The child must be related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.

A spouse or former spouse

ACTS OF VIOLENCE

  • Endangerment, threats, intimidation or harassment

  • Interference with the custody of children;

  • Trespass on or damage to property;

  • Restraint, Kidnapping, or holding one prisoner;

  • Assault with his/her body or with a weapon;

  • Displaying a deadly weapon or threat with a deadly weapon;

  • Surreptitiously (without your knowledge) photographing, videotaping, filming, or recording

  • Stalking

ARIZONA’S ORDER OF PROTECTION STATUTE

13-3602. Order of protection; procedure; contents; arrest for violation; penalty; protection order from another jurisdiction

A. A person may file a verified petition, as in civil actions, with a magistrate, justice of the peace or superior court judge for an order of protection for the purpose of restraining a person from committing an act included in domestic violence. If the person is a minor, the parent, legal guardian or person who has legal custody of the minor shall file the petition unless the court determines otherwise. The petition shall name the parent, guardian or custodian as the plaintiff and the minor is a specifically designated person for the purposes of subsection G of this section. If a person is either temporarily or permanently unable to request an order, a third party may request an order of protection on behalf of the plaintiff. After the request, the judicial officer shall determine if the third party is an appropriate requesting party for the plaintiff. For the purposes of this section, notwithstanding the location of the plaintiff or defendant, any court in this state may issue or enforce an order of protection.

B. An order of protection shall not be granted:

1. Unless the party who requests the order files a written verified petition for an order.

2. Against a person who is less than twelve years of age unless the order is granted by the juvenile division of the superior court.

3. Against more than one defendant.

C. The petition shall state the:

1. Name of the plaintiff. The plaintiff's address shall be disclosed to the court for purposes of service. If the address of the plaintiff is unknown to the defendant, the plaintiff may request that the address be protected. On the plaintiff's request, the address shall not be listed on the petition. Whether the court issues an order of protection, the protected address shall be maintained in a separate document or automated database and is not subject to release or disclosure by the court or any form of public access except as ordered by the court.

2. Name and address, if known, of the defendant.
3. Specific statement, including dates, of the domestic violence

alleged.

4. Relationship between the parties pursuant to section 13-3601, subsection A and whether there is pending between the parties an action for maternity or paternity, annulment, legal separation or dissolution of marriage.

5. Name of the court in which any prior or pending proceeding or order was sought or issued concerning the conduct that is sought to be restrained.

6. Desired relief.

OBTAINING AN ORDER OF PROTECTION

In order to obtain an order of protection, the plaintiff must present the following to the court:

  • The defendant’s personal information such as an address, phone number, employers contact information, the defendant’s name, address, phone number, and the like;

  • Evidence sufficient to support the contention that the defendant harassed, assaulted, or performed an act amounting to domestic violence. Evidence can come in the form of medical records, police reports, phone records, e- mails, or any other evidence.

  • Once the petition has been heard, a judicial officer reviews the petition and the plaintiff provides sworn testimony. The defendant does not need to be present during this initial process if the judge believes that the evidence is sufficient. If the evidence is sufficient, the permanent order of protection will be granted for the period of a year. If the judge does not believe that the plaintiff has provided sufficient evidence, a hearing may be scheduled within ten days and the defendant is able to attend.

HOW DO I OBTAIN AN ORDER OF PROTECTION ON MY OWN?

STEP 1-Consult an attorney if possible.

Consulting a lawyer can make an already very stressful process much easier. Attorneys can help you fill out forms and advise you on which protective order is appropriate to your situation. If you cannot afford an attorney, visiting a free legal clinic like the Arizona Legal Center is a great place to start. Volunteers are available be able to walk you through the process and explain your rights under the law. Your county court may also have suggestions for free legal advice. Another option is to call the National Domestic Violence Hotline for legal support and recommendations if your situation

involves domestic violence.

STEP 2: Fill out the appropriate forms. Protective order forms are available in five languages and can be filed in any superior, municipal or justice court regardless of where you live in Arizona. The Courts are opened generally from 8 a.m. to 5 p.m. When you enter the court, go to the Clerk of the Court’s counter, Self Service Center, or protection order window and tell the clerk you are requesting an Order of Protection.

In Maricopa County, the courts have made obtaining an Order of Protection very simple. You will fill out the required paperwork using a computerized Domestic Violence prompt system. This paperwork will include a petition. The petition

names all protected parties. They system will prompt you to list the reasons why you are seeking a restraining order. As long as you bring with you the above listed information, filling out the requisite form should be relatively simple, and generally takes less than 30 minutes.

It is very important to note, however, that Courts only have limited jurisdiction. For example, if you obtain an Order of Protection in Scottsdale, such Order is only valid in the Scottsdale City Limits. It is best to obtain an Order in the Superior Court, or in Maricopa County, or the county in which you reside, so that the Order is Valid throughout the

County, and not just in the City of Scottsdale. At this time, there are no interstate Orders of Protection, although there are a number of federal

statutes that provide protection across state lines.

STEP 3: Appear before a judge. After you file the paperwork, you will appear before a judge to answer questions regarding your petition. They may ask you questions about specific incidents in the petition. This part of the process can be emotionally difficult. If possible, bringing someone to support you in court can be crucial.

STEP 4: Serve the Order of Protection. If the judge grants the restraining order, legally you must notify the defendant. You must serve them with the Petition for the Order of Protection and a copy of the signed Order of Protection through a process server or a member of law enforcement. A restraining order is not valid until it is served upon the defendant.

You have one year to serve the defendant before the restraining order is invalid. In Phoenix, if you know where the defendant is located, the Protective Orders Coordinator will work with the Phoenix Police Department to file the order on your behalf at no charge to you. If the defendant cannot be served immediately, it is important to keep a copy of the signed Order of Protection with you at all times. If the defendant approaches you before the order is served, call 911 and let them know that you have a restraining order against the defendant.

HOW MUCH DOES IT COST TO GET AN ORDER OF PROTECTION?

There is no fee to file a restraining order in a court in the state of Arizona. If you choose to hire a private process server, expect to pay between $45 and $100.

HOW DO I DEFEND AGAINST A FRIVIOLOUS ORDER OF PROTECTION

Orders of Protection are granted on an ex parte basis (only one of the parties was present when the Order was granted). A Defendant has the opportunity to contest the Order of Protection by requesting a hearing within ten (10) days of service of the Order. You must file a Motion with the Court requesting a hearing prior to the expiration of the ten day period.

At the hearing the plaintiff carries the burden of proving that the defendant has committed an act of domestic violence in the last year or that the Defendant is likely to commit an action of domestic violence in the next year. Acts that occurred more than a year ago may only be considered only if there is good cause.

The plaintiff is only permitted to present evidence to the Court regarding allegations that are specifically stated in the Petition for Order of Protection. The defendant will have the opportunity to cross-examine the plaintiff and any of plaintiff’s witnesses, and the defendant will have the opportunity to testify on his/her own behalf as well as present his/her own witnesses. Each party is also allowed to present documents as evidence to the judge. The rules regarding the admission of evidence in Order of Protection Hearings allow all relevant evidence to be presented with only limited exceptions. Examples of evidence that can be used are: police reports, DCS/CPS records, previous Orders of Protection, criminal records, pictures of injuries, text messages, and emails. If you plan to use an audio recording or video, most courts require the audio/video to be on a separate CD or jump drive that can be played on a device in the courtroom but also retained by the judge for future use (and admission into evidence).

Upon the close of evidence and argument, the judge or commissioner will decide whether to: (1) keep the Order of Protection in place as it is; (2) keep the Order of Protection in place but modify its terms; or (3) dismiss or quash the Order of Protection all together. If the Order of Protection is upheld, it will continue to be in effect for a period of one (1) year after it was served. If the Court dismisses the Order of Protection, there will be no additional restrictions on contact between the parties, although it is typically advisable for the Defendant to keep a safe distance from the Plaintiff to avoid any future issues.

If an Order of Protection is upheld after a hearing, the Defendant will be prohibited from possessing firearms for the remainder of the time the order is in effect regardless of whether a prohibition on firearms was contained in the original order.

For further information, or questions about Orders of Protection, please contact Adams & Associates, PLC at 480 219 1366, or E-mail Ashley at aadams@azwhitecollarcrime.com.