An order of protection is a tool that is available, and should be used when appropriate. Unfortunately it is often misused to the detriment of both parties and often the children.
If one party reasonably fears that the other party to the case will harm them, or if the other party has threatened to harm them, an Order of Protection may be appropriate.
To get an order of protection, a party can go to most courts in Arizona. Once a divorce case has been filed, however, they should go to the superior court in the county in which the divorce is pending if at all possible.
Initially, the order of protection is simple enough to get, as the procedure allows the Judge to hear only one side of the story. If the person requesting the order of protection makes an appropriate showing that domestic violence has occurred or that there have been threats of domestic violence occurring, the Court can grant an order of protection.
Once served upon the other party, that party has a right to request a hearing. In short, that person’s constitutional due process rights including the right to “confront his or her accusers” have been circumvented by holding a trial without their participation. The law then requires a trial to be set within 5-10 days so that they can have their due process rights.
At this second hearing, the Court has an opportunity to hear both sides of the issue, and the Court can either affirm the order of protection or quash (cancel) the Order of Protection.
When clients of mine indicate that an order of protection has been served upon them, a nearly universal emotional reaction is to immediately file to request a hearing. There may be some financial, logical, and legal reason why it may be advantageous not to contest the order of protection, which should always be considered before rushing in.
First, why do you care? If you are in the middle of a divorce, and you have no desire to speak to the other party, why do you care that there is now a judge’s order that you not speak to them? If your only reason is that they lied when they obtained the Order of Protection, you may want to save some time, money, and aggravation and simply allow the order of protection to expire on its own in a year.
Next, an order of protection that was obtained without your opportunity to be heard has less legal significance and less ramifications than an order of protection affirmed after you have had your right to confront your accusers. Most orders of protections do not restrict your right to continue to have guns (some may if the Court specifically orders this). However, by law, if you challenge the Order of Protection and the Court affirms it anyway, the Court must order that you not have guns for the remainder of the year in which the Order of Protection is in place. For many hunting, 2nd amendment, and other gun enthusiasts, this risk is not worth having the right to speak with the other party who you are divorcing anyway.
Similarly, a finding of domestic violence can be used by the Court when determining which parent should have legal decision making authority. Most judges do not automatically consider an order of protection issues without due process to be a legal finding of domestic violence. However, if you demand and obtain a hearing where both sides present evidence, the Court could specifically find that domestic violence has occurred, which could have a negative impact on your rights to legal decision making.
Sometimes, however, you are left with little choice but to contest an order of protection. A party, often an unrepresented party or one without a good attorney, will overreach, and will obtain an order of protection that prohibits you from seeing your children, or from going to a residence that you own. Not seeing your children for a year is not an option for most people, and being kicked out of a house that you own may not be appropriate in many cases. You may therefore need to contest the Order of Protection. (If you are the person obtaining an order of protection, you may want to narrow what you are asking for so that the other party is more likely to simply leave the order of protection in place without contesting it).
There are many logical, legal, and financial reasons (and certainly emotional reasons) why contesting an order of protection may or may not be appropriate in your case, and an experienced attorney can help you determine which strategy would be best for your specific circumstances.