The Indiana Civil Protective Order Act (“Act”) provides powerful relief to help ensure the safety of certain covered Hoosiers who find themselves in dangerous situations, such as a victim of domestic violence. Additionally, the Act covers certain minor children in harmful situations or individuals, such as from an abusive or drug-addicted parent. While protective orders issued under the Act are unique and powerful tools, they may be abused in cases by a petitioner’s false allegations and issued against a person who is not a threat to anyone. This blog looks at five things to know about protective orders so that you may protect yourself as a victim, or defend yourself against false allegations made in a protective order petition and any order that may issue ex parte or after hearing (and why you should defend yourself).
Who Can Obtain a Protective Order? Protective order requests are limited to certain domestic situations.1 Indiana statutory code provides a specific list of individuals who can obtain a protective order (“a PO”). First, a person who is, or has been, a victim of domestic or family violence may file for a PO against a family or household member who committed the act of domestic or family violence.2 Second, a victim of stalking or a sex offense may seek a PO against the alleged perpetrator. Third, a person who is, or has been, subjected to harassment may file for a PO against the person committing the harassment. Finally, a parent or guardian can file for a PO on behalf of a minor child who has been subject to domestic or family violence, or a victim of stalking. Is this your situation?
What are the Grounds for Obtaining a Protective Order? There are three (3) basic grounds for obtaining a protective order: (1) being a victim of domestic or family violence; (2) being a victim of stalking; or (3) being a victim of harassment. Domestic or family violence is defined by several different acts, for example, attempting to cause, threatening to cause, or causing physical harm to another family or household member. Stalking is defined as a knowing or an intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened.3 Finally, harassment is defined as conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress.”
Ex Parte Order of Protection. If a victim petitions for a PO and alleges that there has been domestic or family violence, then a Court may issue an order of protection ex parte. Ex parte simply means without a hearing, which is something of a rarity in the American legal system. The purpose, of course, is to prevent further abuse or violence. This ex parte exception for a PO can only be used when there is domestic or family violence, and it does not apply to Petitioner’s alleged harassment. In addition, the party against whom an ex parte order of protection issues cannot be Brady-disqualified. This means he or she cannot possess firearms or ammunition. A person must be afforded an evidentiary hearing before he or she may be Brady-disqualified. If your job involves you carrying a firearm, such as if you are a police officer or member of the military, this may have significant life consequences. If this is your case and a PO is sought against you as a tactic due to some event that does not qualify for a PO, you should vigorously defend yourself at the protective order hearing through skilled counsel familiar with defense of protective orders.
Right to Request a Hearing. If a court grants a Petition for a Protective Order on an ex parte basis, then the Respondent has the right to request a hearing on the same. However, there are time constraints put on this right to request a hearing. Statutory code mandates that a respondent has thirty (30) days to request a hearing on an ex parte protective order. If you want to defend against an ex parte order, it is imperative to obtain counsel and to timely request this hearing because otherwise, the PO will become effective for a two-year period. And once you waive this right, you may be Brady-disqualified.
Violations of Protective Order. Violating a protective order can result in serious consequences. First, a violation of a protective order can be punishable by confinement in jail. Moreover, it is a violation of federal law to purchase, receive, or possess a firearm while subject to an order of protection. Upon finding that an individual violated an order of protection, a court may either: (1) require a respondent to wear a GPS tracking device, and (2) prohibit the respondent from approaching or entering certain locations where the petitioner may be found. Thus, and again, protective orders may have significant consequences. While there is, unfortunately, a small group of individuals who just seek protective orders as routine ways to end ordinary disputes or as a pretext to obtain an advantage in other litigation (such as a contested child custody divorce case), you should be able to see the wide range of additional consequences from having a protective order issued against you that you do not defend against. If it is tactical, you should always vigorously defend yourself.
Ultimately, the right to seek a protective order is limited to a narrow group of people and tied to very specific acts that are of social significance. Protective Orders are unique and very complex to defend against, but where granted, have significant implications. A skilled attorney can help you to navigate these murky waters if you seek a protective order or need to defend against a protective order issued against you. Dixon & Moseley, P.C. attorneys handle all facets of protective orders and practice throughout the State of Indiana. This blog post is written by Dixon & Moseley, P.C. advocates. This blog is not intended as specific legal advice or a solicitation for services. It is an advertisement.
There is other relief available if your situation does not fall under the scope of the Indiana Civil Protective Order Act.
Indiana Code section. 34-26-5-2.
A reasonable person is not just someone overly sensitive and stating they were terrorized just to obtain a PO. Instead, it has to be what an average reasonable person would have perceived. This is often the basis for a defense. Anyone can assert they were terrorized, but proving it in open court is far different with skilled defense counsel.
