In 2012, the Indiana Legislature passed the Indiana Civil Protection Order Act.1 This Act allows a person who alleges that he or she is the victim of domestic and/or family violence, stalking, and/or a sex offense to ask an Indiana civil (trial) court to order the alleged offender to stop doing those acts by issuing an order that may result in contempt or arrest for violation. Unfortunately, these legal mechanisms are sometimes used to gain a tactical advantage in custody cases or for other illicit purposes. Is this your case? You know. This blog analysis the process and importance of retaining an attorney who is knowledgeable about civil protective orders if you find yourself in this situation. You cannot ignore an illicit and bad-faith ex parte order or one that is set for a hearing because it may have significant unforeseeable, negative long-term consequences for you; you must try to avoid by vigorously defending yourself.
1. Ex Parte Orders.
Because of the emergency nature alleged by someone seeking a protection order in the first place, the law allows a civil court to issue certain orders of protection ex parte. Ex parte means that one of the parties, usually the person against whom the protection order is sought (called the “respondent”), does not get an opportunity to present their position in front of a judge before the order of protection is issued. This is unlike most all aspects of American law; many people are shocked to learn this—the hard way—when they receive an ex parte order. This means that the respondent does not have the contemporaneous opportunity to evaluate and challenge the information being used in order to get the protection order; and unfortunately, people have used petitions for protection orders in emotional cases, such as a divorce case, to gain an advantage. These ex parte protection orders may prevent a respondent from contacting the petitioner or visiting the petitioner’s school, work, daycare, or home.2 It is imperative that one who is the respondent in a protection order case challenge an ex parte protection order so that both sides can be heard. If such an ex parte order is issued, the only way to obtain a hearing may be for the respondent to request one. Skilled counsel can navigate the Civil Protective Order Act and assess how you get your day in court, but do not delay.
2. Timing.
Because ex parte motions, matters, and order are supposed to address emergency situations and prevent harm, there are related key timing issues you must be aware of or be “stuck” with the ex parte order and the right to defend. Certain circumstances require that a hearing is held after a petition for a protection order is filed, but you may have to request it or waive the right. Often, these hearings must take place within thirty (30) days after the petition is filed.3 This is a very short amount of time to prepare for an important hearing, particularly if the petition for the ex parte order contains a long list of alleged illicit acts in different places and across various times. You have to locate witnesses and get documentary evidence into an admissible format in a very short time period; this is very hard to do if you must request records from other sources which ordinarily takes 45 days to receive.4 It is critical that an adequate defense is prepared and that all evidence that may help you in challenging the petition for a protection order be provided to the court. Even the best counsel needs the maximum time to prepare. Don’t delay.
3. Possible Outcomes.
While an ex parte order may seem harsh and unfair with a short time to prepare, the consequences of not successfully defending your case grave and significant. Specifically, the possible outcomes of an ex parte order were discussed in paragraph 1. But the possible outcomes where a hearing is required to take place, whether after the order is issued or before, is even broader. A court may:
- Evict the respondent from the petitioner’s residence.
- Order a respondent to provide the petitioner with possession of commonly owned property such as a car or a shared home.
- Modify or deny parenting time between a respondent and minor child.
- Order the respondent to pay the petitioner attorney fees, rent, or expenses associated with obtaining domestic violence related services.
- Prohibit the respondent from possessing firearms or ammunition and require the respondent to surrender all firearms, ammunition, and deadly weapons to law enforcement. More on this issue is discussed below.
Thus, an ex parte order or order of protection issued after a hearing may totally reshape a custody case and deprive you of your fundamental right to raise your children.
4. Brady Disqualification.
Core civil liberties5 are also at risk with orders of protection, which means you can be
prohibited from possessing firearms and ammunition. The term “Brady Disqualification” is a commonly used term applied to a number of people who are unable to possess or purchase firearms. People included in this group are those who have (or waive the right to) a hearing and an order of protection issues or stands. This is required under federal law while the order is in place (typically 2 years, unless renewed). This is particularly problematic for men and women who may be in law enforcement, military, or security work, as it may cause him or her to lose their employment because they cannot possess a firearm. Equally, for individuals who work for the same employer, it may prevent the person under the protective order not to be able to enter the workplace and earn a living.
5. Violations of a Protection Order.
If a respondent violates a valid protection order, the penalties for violating the order can be harsh, including criminal charge, fines, and incarceration. This may then result in a no-contact order from the criminal case. At that point, a litigant subject to a protective order may have an already existing divorce and criminal case added to them another contempt for violating a protective order, criminal arrests, and no-contact order. Act to avoid having multiple civil and criminal suits against you. A mere ex parte protective order may spiral out of control in legal terms in a very short time. Thus, the issues surrounding a protection order are complex and may come with important and long-term ramifications.
The takeaway from this blog is to understand what Civil Protection Orders are, how they may be misused, and their profound implications. If you receive an ex parte protective order or receive notice and hearing one is being sought against you, you should immediately seek counsel and vigorously defend the case. We can help guide you through the complex process and challenges of challenging a civil protection order. This blog is written by attorneys at Dixon & Moseley, P.C. who handle a full spectrum of protection order legal issues throughout Indiana. This blog is not intended as legal advice or a solicitation for services. It is an advertisement.