Domestic Violence & Protective Orders
What Constitutes Domestic Violence in Arizona?
Domestic violence can take many different forms. The Department of Justice defines domestic violence as: “a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner. Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.”
How do I Document Domestic Violence?
One threatening text may not be enough for someone to realize it’s abuse, but multiple and repeated threatening texts are a pattern of behavior. The same goes for emails, phone calls, voicemails, and messages online. And often, when abuse happens digitally or verbally, it can escalate to something physical. Documenting abuse can not only identify the red flags, but it can help a person take steps to stop future abuse, as well as prepare someone if they decide to take legal action. Here are five important ways to document abuse in a relationship:
1. Write it down. Keep a journal so you can track what is happening. Always write down the date and time of each incident, and record details of what happened. These details include witnesses, broken items, weapons, injuries, etc.
2. Photos and Screenshots. Take screenshots as well as print out all text messages, emails, phone calls and lists of messages with evidence. Take photos of your household in disarray after a violent episode or pictures of weapons used by the abuser against you.
3. Go to your doctor. If there has been any kind of physical abuse, seek medical care. Even if there are no visible injuries, it does not mean there was no harm done. Health care professionals are trained to recognize signs of abuse and can be safe resources. Ask them about safe ways they can note the abuse if you are not ready to move forward with getting help, like writing the cause of injury without going directly to police.
4. Store evidence safely. Make sure to keep anything you document in a safe and secret place. It is a good idea to set up a new email address where you can document the abuse. Change your passwords regularly.
5. Call the police. If you are ever in a situation where you need immediate help, call the police. A police report will also create a paper trail of the abuse.
What is the difference between an Order of Protection and an Injunction Against Harassment?
It should be noted that an order of protection and an injunction against harassment are not synonymous with one another. These are two separate documents that apply in different situations.
An order of protection, as explained under Arizona Revised Statute 13-3602, is a document that is issued by the court in order to prevent someone from committing an act of domestic violence, as defined in Arizona Revised Statutes 13-3601(a).
The order of protection also can only be issued against specific individuals.
For the order to be issued, the recipient of the order must be in some form of a familial relationship with the opposing party. A familial relationship can include a spousal relationship, a former spousal relationship, roommate or tenancy, someone whom you have a child with, or a relative who is related to you by blood.
On the other hand, an injunction against harassment, as explained under Arizona Revised Statute 12-1809, is a document that is issued by the court to prevent an individual from committing acts that amount to harassment against the opposing party.
Harassment, as defined by Arizona Revised Statute 12-2921, is an act that amounts to contacting, communicating, or causing communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses.
Harassment can also amount to following another person in a public space after being asked to stop or surveilling another person. Unlike orders of protection, with an injunction against harassment, there cannot be a familial relationship between the parties. Essentially, the parties can be neighbors, coworkers, friends, landlords, and the like. Other types of relationships where an injunction against harassment cannot be filed include a past/present intimate relationship or a past tenancy relationship.
Where can I get an Order of Protection or an Injunction Against Harassment?
You may file a petition for an Order of Protection or Injunction Against Harassment in any superior, municipal or justice court regardless of where you live in Arizona. When you enter the court, go to the Clerk of the Court’s counter, Self Service Center, or protection order window and tell the clerk you are requesting an Order of Protection or an Injunction Against Harassment. The clerk will give you the proper Petition forms.
How do I obtain an Order of Protection?
If both parties are within a familial relationship and the defendant committed, or is about to commit domestic violence, harassment, or assault against the opposing party, then the plaintiff can petition the court for an order of protection.
In order to obtain an order of protection, the plaintiff must present the following to the court:
Their personal information such as an address, phone number, employers contact information, the defendant’s name, address, phone number, and the like.
Evidence sufficient to support the contention that the plaintiff harassed, assaulted, or performed an act amounting to domestic violence. Evidence can come in the form of medical records, police reports, and doctor’s appointments.
Once the petition has been heard, a judicial officer reviews the petition and the plaintiff provides a sworn testimony. The defendant does not need to be present during this initial process if the judge believes that the evidence is sufficient. If the evidence is sufficient, the permanent order of protection will be granted for the period of a year. If the judge does not believe that the plaintiff has provided sufficient evidence, a hearing may be scheduled within ten days and the defendant is able to attend.
How do I obtain an Injunction Against Harassment?
If the parties are not in a familial relationship, the court may issue an injunction against harassment if the defendant is harassing the plaintiff. For the court to grant an injunction against harassment, the plaintiff needs to present the following to the court:
Sufficient evidence indicating that the defendant is harassing the plaintiff; or
Sufficient evidence supporting the argument that without order against protection, great or permanent harm is likely to result if the order is not issued immediately and that the plaintiff attempted to notify the defendant regarding the injunction. If the defendant did not notify the plaintiff regarding the order, then the plaintiff needs to provide the court with valid reasons why the defendant should not have been notified.
In the case the court does not grant the injunction against harassment, the court will hold a hearing within ten days that requires the defendant to attend and gives them an opportunity to be heard.
What is “Exclusive Use”
When you file for an order of protection, you have the ability to request exclusive use of the residence you are residing at. You may be granted exclusive use of the residence in an order of protection if the judicial officer determines that there is reasonable cause to believe physical harm may result.
The court may allow the defendant to return one time to the residence with a law enforcement officer to retrieve personal belongings.
It is important to note that this order does not affect third parties, such as landlords. The landlord does not have to allow you to stay in the residence if you are not on the lease.
What are Brady Restrictions?
The judge may order a defendant to turn over ALL firearms if the judge finds that the defendant is a credible threat. If such an order is issued, the defendant must turn over all of the firearms in their possession to the local law enforcement agency. When the order expires (after one year) the defendant may request the return of their firearms from the law enforcement agency that is holding them.
If you are a defendant, you may request a hearing to modify the order to return your firearms.
Consequences of an Order of Protection
There can be many serious consequences that stem from an unfair Order of Protection, such as:
· The inability to visit children
· The inability to enter your own home
· Losing child custody or parenting time with children
· Having parenting time restricted to supervised visitation only
This Order will also show up on a background check, which could negatively impact your career and future employment options.
How do I Contest the Order of Protection?
Since in most cases the defendant does not have the opportunity to be heard before an order of protection or injunction against harassment is granted, it is possible that the order was filed without cause.
If you, as the defendant, believe that the order was filed without cause, then you have the right to request a hearing to contest the order or injunction.
As the process for requesting modification or dismissal is taking place, it is vital that you do not make matters worse. This means that you need to exhibit behavior that does not come close to harassment, domestic violence, or assault. In addition, you should also obey the current order in place to show the court that you are not threatening in any manner.
Going to the Hearing
At a hearing, a judge hears all the facts from both sides before making a decision based on Arizona law. You (or your lawyer) will need to present significant evidence that discredits the petitioner or rebuts the reasons the Order was issued.
Consequences of Hearing
It is important to understand that it is difficult, albeit not impossible, to have an order of protection lifted. You only have one opportunity to contest the order or injunction. Once the court issues a ruling, you do not get a second chance. If the judge rules against you at the hearing, you may then appeal the court’s decision made at the hearing.
How Can a Lawyer Help?
If you need a protective order to protect you and/or your children, we are here to help. We can assist you in obtaining the order and ensure that it is filled out correctly to help get you the protection you need.
If you feel that you have been wrongly served with a protective order, and need to challenge it with the court, we are here to discuss the process with you, and advise you on the best steps moving forward.
Please note that if you have committed domestic violence onto your partner or children, we are here to help. You are free to contact us to set up a confidential consultation with absolutely no judgment. We can and will help you to outline a path forward for you to seek the help you deserve. It truly is never too late.
If you find yourself needing the assistance of counsel, select the Contact Us option below to schedule a consultation with one of our experienced family law attorneys. We are here to help.