If you have been abused or harassed, you may wish to consider an Order for Protection. When an Order for Protection is granted, an abuser must stop abusing you. This also might mean that the individual is no longer allowed to communicate with you, or visit your home, or place of work.
An Order for Protection is generally issued when an individual, or his/her children, have been the victims of domestic violence or abuse. Whether you need to obtain an Order for Protection, or defend against one, our Order for Protection lawyers in Minnesota can help with your case.
The Granting of an Order
An Order for Protection in Minnesota can only be issued in cases where an individual has a “significant” relationship with the abuser. Before a protective order can be granted, there must be substantial evidence that abuse has taken place. In the case of an Order for Protection, the courts turn to Minnesota state law to define domestic abuse.
“Domestic abuse” can take a variety of forms. This includes physical abuse, verbal abuse, mental abuse, or threats and intimidation. The abuse does not have to be administered in person. An abuser may be using phone calls, emails, or social media in order to mistreat the victim.
Abuse that qualifies for an Order for Protection in Minnesota can come from a variety of people, including:
- A spouse or former spouse;
- A cohabitant or someone you cohabited with in the past;
- The parent of your child, even if you have never been married;
- A person with whom you were involved romantically or sexually; or
- A blood relative.
If someone is abusing you but does not have a significant relationship with you, then you will need to pursue a Harassment Restraining Order.
Scope of Protection
An Order for Protection in Minnesota can last up to two years, and the protected individual can petition for an extension before the original order expires. However, an Order for Protection by itself does not guarantee complete protection. The order does not physically keep someone away from you, but it does help to increase the chance that you will remain safe from the abuser. When someone violates an Order for Protection, that individual will face criminal charges and could even go to jail.
Podcast: Orders for Protection
This is Jason Brown. I’m one of the founding partners with the Brown Law Offices, a Northwest Twin Cities law firm handling primarily divorce and family law cases. And today’s show is going to focus on two concepts that are somewhat related in the sense that they have a very distinct definition from each other under the law. However, they tend to work their way through the court system relatively similarly.
Those issues being domestic abuse and harassment. Now, when I say they work their way through the court system in a somewhat similar manner, what I’m referring to is the notion that there can actually be a trifecta of cases going on concurrently arising out of the exact same incident. For example, let’s say that an act of domestic abuse occurs at a house between a husband and wife.
Law enforcement may respond. They may interview the individuals, may wind up citing one of the individuals for domestic assault. Case number one then will be a criminal case that works its way through the court system with the prosecutor actually handling the matter on behalf of the state of Minnesota.
Petition for Order for Protection
The second way that a judge might be involved in the act of domestic abuse that I talked about a moment ago would involve the alleged victim petitioning for an order for protection. This is an order that we’ll talk in more detail about in just a couple of minutes. But it’s a civil action, not a criminal action. In other words, it’s brought by a person against another person, the alleged victim filing for a protective order, that mandates that the alleged perpetrator not have contact with that individual.
Impact on Divorce and Custody Cases
And yet a third way that a judge may wind up dealing with that one act of domestic abuse involves a situation where the litigants are in family court and there’s a divorce action pending or some sort of a paternity action that’s been filed.
So, keep in mind, one of the unique features about both domestic abuse and harassment cases is the fact that at any one point in time, there can be a criminal case, a civil case, and a family case, all going on dealing with the exact same incident. Although this is technically a family law podcast, I want to touch lightly on the criminal charge involving domestic abuse. It is known as domestic assault under Minnesota law, and the statute itself defines domestic assault in the fifth degree, which is the most common type of charge that flows from a more routine, if there is such a thing, act of domestic abuse, where there’s not a deadly weapon or a substantial bodily harm resulting to the victim.
Fifth Degree Domestic Assault
Fifth degree domestic assault is defined as intentionally causing fear of physical harm or actually physically harming a family member or household member, and the statute broadly defines a family member to include not only husbands and wives but also parents and children, those that have had a child in common together, or those that are involved in a romantic relationship together.
A fifth degree domestic assault charge in Minnesota is a misdemeanor punishable by up to 90 days in jail and a $1,000 fine. The likely outcome will not only be a some sort of fine, and perhaps a period of incarceration or community work service, but there will also be a no contact order that is routinely entered, that prohibits contact between the abuser and the alleged victim. This no contact order is routinely entered immediately following the arraignment of the alleged perpetrator, and actually typically winds up being a condition of probation. In other words, the court may hold some jail time over the accuser’s head and if they have contact with the victim during their probationary period, that in and of itself can constitute a basis for the court to haul that person back in and impose some additional sanctions against them, including additional jail time.
Abuse Upon a Family Member
In terms of securing an order for protection because of an act of domestic abuse, it’s important to keep in mind that a lot of individuals do believe that they have been the victim of some sort of domestic abuse. It’s not to say that their position does not have merit, that they are inappropriately claiming that they’ve been mistreated by their spouse, but an act of domestic abuse under the Minnesota domestic abuse act has a very narrow and a very specific definition, which includes the following directed towards a spouse or a child,
First, either physical harm, bodily injury, or assault, or the infliction of fear of imminent physical harm, bodily injury or assault, terroristic threats, in other words a threat to commit some sort of a crime of violence against an individual, or criminal sexual conduct. Either in the first degree, second degree, third degree, or fourth degree. The most common basis for the petitioner to seek an order for protection involves either an act that actually did occur or the infliction of fear of imminent physical harm.
Basically, if someone is threatened and the threat is real and it’s reasonable for that individual to perceive the language as a threat, the court may find that there is a valid basis to enter an order for protection.
Filing a Petition for an Order for Protection
In practical terms, the way to petition the court or ask the court for an order is to begin by filing a document called a petition with the district court administrator. This can be filed in any number of counties including the county in which either party resides or where there’s been a dissolution action or in which the actual act of domestic abuse occurred. Courts typically don’t charge any sort of a filing fee to commence an order for protection action and they typically don’t charge any kind of a fee to have the service actually be concluded by the Sheriff’s deputy for that particular county.
Now what happens is that the individual will put together this initial petition and affidavit paperwork, file it with the district court. The petition in the affidavit have to outline the existence of an act of domestic abuse as I defined a few minutes ago. The court is then required to take a look at that material and figure out, if believed, whether there are sufficient facts to demonstrate that an ex parte, in other words, an order that has given without notice to the other side, should issue.
Ex Parte OFP
Once that ex parte order issues and the court finds that there’s been an initial establishment or a prima facia case of domestic abuse, service will have to be concluded, and again that will typically take place through the Sheriff’s deputy. Once service occurs, the court is required to hold a hearing within 14 days. It’s very important to keep in mind that if the matter is not heard within 14 days, by statute that matter may be dismissed. So there are some exceptions and some caveats that come into play, but typically the matter is heard within 14 days. Actually typically much sooner than that.
Pending that evidentiary hearing or trial, it’s kind of a mini trial that occurs, the court may issue an ex parte order for protection. This is an order granted, again without notice to the other side, and it may include any or all of the following types of relieving including things like restraining the other party from committing acts of further domestic abuse, precluding the other party from the residence of the parties, or from the individual who is petitioning for the order, excluding the other party from the alleged victims place of employment, requiring that individual to continue all insurance coverage. There may actually even be child support orders, spousal maintenance orders, and other orders relating to the relationship and the assets and liabilities of the parties as part of that temporary ex parte order.
During the process of the evidentiary hearing, typically, the rules of evidence apply, although quite often the court is willing to relax those rules during a process, which often involves folks who are representing themselves. If indeed the petition is proved up by the petitioner. In other words, if the court after hearing all the evidence does believe that an act of domestic abuse occurred, they may issue a more long term or permanent order that is deemed an order for protection.
This may include things like, again, restraining the other party from abusing, precluding them from the residence, and other items. Now there is one thing that courts tend not to like to do as part of an OFP. Even though the statutes do allow a party to petition for example, for custody of children and for child support and for a division of assets and debts and an award of spousal support, courts do typically like to defer to family court. They don’t want litigants to use the order for protection process as a shortcut to a motion for temporary relief in family court.
Duration of an OFP
Most often in order for protection and will remain in effect for a period of one year unless the court believes that a different time period is appropriate. Some orders that we’ve played a role in have lasted up to two years. Others have been for a shorter period of time, as four to six months, but to after that period expires, the individual who initially sought the order does have the ability to come back into court and ask the court to extend or continue that order for protection. If they can demonstrate that there’s a need to do so.
One thing to keep in mind is that as a consequence of the issuance of an order for protection, a litigant, the person who is the alleged perpetrator of the act of domestic abuse, will be prohibited from carrying, possessing, or using a firearm. And for many who, across Minnesota, enjoy hunting as one of their leisure activities, that can be a real sticking point in terms of whether or not they wish to move forward and contest the petition for an order for protection. So if the ex parte order for protection issues, the matter will be set on for a hearing and on the day of hearing there are four possible outcomes. The first outcome is the fact that a petitioner either may not show up or may show up and just say, “Well, things have cooled down. I don’t need to have this order issued any longer.” And the matter will be dismissed.
Issuance of Order without Findings
A second potential outcome is for the responding party to show up and basically plead no contest. They don’t necessarily object to the relief sought. In other words, they’re willing not to have contact, but they don’t want to admit that an act of domestic abuse occurred. And that is an option.
Admission and Entry of OFP
Still a third option, although we would never advise a client to agree to this, some responding parties will show up and admit that an act of domestic abuse occurred and they will admit that there is a sufficient basis for the order to issue and they will not dispute the issuance of that order. Very dangerous territory, however, when it comes to admitting that an act of domestic abuse occurred either for purposes of a future divorce involving custody issues, or the potential for criminal charges.
And then finally the responding party show up and dispute the entire petition and asked that the evidentiary hearing take place. Once the either ex parte, or more long term order for protection issues, it’s very important to keep in mind that a violation of the order, even if it was stipulated to, is a crime under Minnesota law and a police officer is required to arrest anyone they believe has willfully violated an order for protection. In other words that they’ve had contact either directly or through a third party. That contact can be either personally, it can be by telephone, by email, by text message, and the list goes on.
Violation of an OFP
The crime of violating in OFP is actually what’s known as an enhanceable offense. What that means is that the first time it happens, it’s a misdemeanor, the lowest level of crime under Minnesota statute. The second time it’s enhanced to a gross misdemeanor and the third time it actually can result in a felony conviction. The bottom line is that if you are the subject of an order for protection, best not to violate in any way, shape, or form.
Harassment Restraining Orders
Now this podcast is actually supposed to focus on two things, orders for protection and harassment restraining orders. I haven’t forgotten about harassment restraining orders, but what I can do is simply summarize it this way. The process of securing a harassment restraining order essentially mirrors that of an order for protection, as you may recall at the onset. The real distinction here between an HRO and an OFP is the idea of first of all, who the parties are in relation to one another, and then second whether it’s actually been an act of domestic abuse as defined by statute.
An HRO, a harassment restraining order, basically you could come in and if the same exact conduct occurred between two individuals that were not husband and wife or were not related, the individual wouldn’t be able to seek an OFP because there’s no familial relationship. However, they could seek what’s called a harassment restraining order.
The same types of timeframes that exist for an order for protection are in effect for a harassment restraining order. There may be some slight procedural differences. For example, with an HRO, they can now they can charge you a filing fee. They may charge you to serve the individual. But the bottom line is that the two are so closely related that it wouldn’t make sense at this point, you’ve hung in there for the last 12 or 13 minutes, for me to go ahead and spend another 10 minutes simply restating what I’ve just said.
So, there you have it. About 14 minutes or so on orders for protection and harassment restraining orders. If you have other questions about either of these two processes or the basis for the issuance of an order or how to defend against a petition that’s been filed against you, I certainly invite you to give us a call or you can send me an email.