When a person is a victim of domestic violence, he or she has the option to seek an order of protection against the accused. The order can protect the alleged victim, but it also can have a serious impact on the other person. Fortunately, courts allow for a protective order hearing where both sides have the opportunity to discuss the order.
A person can file a petition for an order of protection through a family court if he or she is related to the alleged abuser through blood or marriage, they were legally married, they share a child or they were in an intimate or sexual relationship. Once a petition is filed, the court can issue a temporary order which has some restrictions.
This could mean having one parent forced out of the home, leaving his or her children behind. This could have a devastating effect on the family, especially if the allegations are false or exaggerated. However, this can be beneficial if the alleged victim is in legitimate danger.
A final order of protection often is more serious and can last for up to five years depending on the facts of the case. In these instances, the respondent has a right to a hearing. This is a time for both parties to discuss the possible order and for a judge to decide the case.
If the respondent, or the accused, does not attend the hearing, the person who filed the petition must prove he or she was properly served. This provides a fair system in which a person must know if an order is being requested against them. If the court does not conclude the respondent was properly served, the petition could be thrown out.
If the court agrees the respondent was served, but he or she still did not attend the hearing, the court will ask the alleged victim to explain the incidents alleged in the petition, which is called an inquest. If the judge finds a family offense occurred, the order could be issued that day.
However, if the respondent appears in court, he or she will be presented information about the order of protection. The alleged victim and the respondent will be able to speak to the judge separately, and the court attorney will ask the respondent if he or she agrees to the terms of the order.
If the respondent agrees to the terms, he or she does not admit fault to any wrongdoing. This means the person simply will obey the terms of the agreement without an admission of guilt. This also does not mean the court has made a finding against them and it cannot be used as an example of wrongdoing in future proceedings, including child custody.
The situation can be a little more complex if the respondent does not agree to the terms of the order. If he or she does not think the order should be applied, the case could go to trial. This could mean several court dates before there is a resolution.
Both parties have the right to an attorney throughout the proceedings, including the order of protection hearing. Petitioners and respondents can potentially qualify for court-appointed attorneys or they can hire one on their own. This could be particularly important if the case goes to trial.