Obtaining an Order for Protection
A domestic abuse action is commenced by filing a Petition for an Order of Protection with an affidavit (sworn written statement) detailing the domestic abuse that occurred by a family or household member. What qualifies as domestic abuse is defined by Minnesota Statute. When the court receives the Petition and Affidavit, the court will determine if the Petition alleges domestic abuse. If such a danger is alleged, the court may immediately grant an Ex Parte Order for Protection. The Ex Parte Order for Protection will be personally served on the alleged abuser, most commonly, by the local sheriff’s department. The court may schedule a hearing to take place no later than fourteen days from the court’s Ex Parte Order for Protection to determine if the Order for Protection should continue.
A responding party has three options in responding to the Order for Protection. These options are to contest the order for protection, agree to the order for protection and abide by all of the terms but deny the allegations of domestic abuse, or to accept the order for protection and admit domestic abuse.
If the responding party contests the allegations in the order for protection, the court will hold an evidentiary hearing (trial). At the evidentiary hearing the court will hear testimony from the party requesting the order for protection, the responding party, and from any witnesses either party has testify on his or her behalf. Additionally, the court may accept relevant evidence.
If, after a hearing, the court finds that domestic abuse occurred, the Order for Protection is effective for a fixed period of up to two years, except when the court determines a longer time is appropriate. In addition to restraining the abusing party from committing further acts of domestic abuse, the court may:
- exclude the abusing party from the dwelling the parties share or from the residence of the petitioner;
- exclude the abusing party from a reasonable area surrounding the dwelling or residence;
- award temporary custody or establish temporary parenting time rights on a basis that give primary consideration to the safety of the victim and children;
- establish temporary support for minor children or a spouse and order the withholding of support from the obligor’s income;
- provide counseling or other social services for the parties;
- order the abusing party to participate in treatment or counseling services;
- award temporary use and possession of property;
- exclude abusing party from the place of employment of petitioner;
- direct the care, possession, or control of a pet or companion animal owned by petitioner, respondent or a child; and
- order any other relief deemed necessary.
The process of obtaining an Order for Protection is a civil process. Regardless of whether Respondent agrees to the Order for Protection or the court grants one after a hearing, it is a civil order. However, if the respondent violates a term or condition of the Order for Protection the respondent can be charged with a crime. The issuance of an Order for Protection does not prevent criminal charges from being filed separately for the underlying acts of domestic abuse.
An Order for Protection applies throughout the State of Minnesota and is enforceable in all 50 states.
For more information contact Tuft, Lach, Jerabek & O’Connell, PLLC at 651-771-0050 to schedule a consultation with one of our experienced family law attorneys.