What is a Protection Order / Protection From Abuse Order?
A “Protection Order,” sometimes referred to as a “Restraining Order,” is a court order issued under the Protection from Abuse Act (PFA) which provides limited protection for people who have been threatened, harassed, or physically abused. It can be sought against the victim’s spouse, former spouse, common-law or former common-law spouse, person with whom the victim has a child or person with whom had a dating relationship with in the past six months.
A Protection Order may be sought by the victim, if 19 years of age or older, or by a legally-responsible person on behalf of a minor or incapacitated adult. The person seeking the Protection Order will be referred to as the “plaintiff” throughout this site. While it is not necessary to have the assistance of an attorney, obtaining a Protection Order can have significant legal consequences, especially involving issues such as custody of children and property division. It is recommended that the plaintiff seek legal counsel to assist in this matter.
Who is covered by a Protection Order?
Persons covered by a Protection Order include the victim, minor children of the victim, and designated household or family members. These individuals will be referred to as “the victim” throughout this site. The alleged abuser will be referred to as “the defendant“.
If the victim lives in Alabama, or even if he or she has just moved here, he or she can petition the court for a Protection Order. A Protection Order is effective throughout the State as well as in other states. It is effective for one year, unless the judge specifies a longer or shorter time period. Also, any Protection Order issued by the court of another state shall be enforced as if it were an order of this state.
Generally, protection orders may be issued only if there have been one or more recent acts of abuse or threatened abuse. A judge may dismiss your petition if you claim that the abuse or threat occurred many months ago, or if you only think that something might happen in the future.
What can a Protection Order include?
TEMPORARY PROTECTION ORDERS:
After the Petition is filed, the judge must decide whether to issue a “Temporary Protection Order” based on the Petition. This Temporary Protection Order may be issued; it may include some or all of the following:
Order the victim’s home or work address, the phone number, or other related information deleted from all records filed with the court concerning the Protection Order.
Restrain the defendant from committing or threatening to commit acts of abuse, or from harassing, annoying, telephoning, contacting, or otherwise communicating directly or indirectly with the victim, victim’s minor children, or any other designated family or household member.
Order the defendant to stay way from the victim’s residence and place of work, school or day care or any other specific place frequented by the victim or victim’s minor children or by any other designated family or household member.
Award the victim temporary custody of any minor children and restrain the abuser from removing the children from the victim’s custody. The order may be used to require law enforcement personnel to accompany the victim to get the children to protect the victim or the children from harm.
Remove the defendant from the residence, regardless of who owns the residence.
Prohibit the defendant from selling, disposing, destroying, hiding, or mortgaging mutually owned or leased real estate or personal property.
Order other relief as necessary to provide for the safety and protection of the victim, minor children and other designated family or household members.
FINAL PROTECTION ORDERS:
After a Petition for a Protection Order is filed, a hearing will be held at which the plaintiff will need to prove, through testimony and evidence, that the abuse occurred. The defendant is allowed to be present and offer evidence against the allegations in the petition. The defendant may be represented by an attorney. After that hearing, the judge must decide whether to issue a Final Protection Order. If a Final Order is issued, it may contain any or all of the provisions in the Temporary Protection Order, and may also include:
Order specific child visitation for the defendant, which may include supervised visitation in the presence of a third party or withholding visitation completely, if necessary.
Order the defendant to pay the plaintiff’s attorney’s fees and court costs.
Order the defendant to pay child support for children the defendant has a legal obligation to support.
Order the defendant to provide temporary support for the victim/spouse and grant the victim possession (not ownership) of the residence or household.
Order the defendant to provide the victim temporarily with a vehicle if the victim has no other means of transportation and the defendant has control of more than one vehicle or alternate means of transportation.
While the above relief is available, the court is not required to order all of it in each case. Whether the judge enters an order, and what is included in the order, will depend upon the facts and circumstances of each case. Even with a protection order, the victim may still need to find a safe place to live. If the defendant violates the terms of the protection order, a warrant may be issued and brought before the Judge.
What does a Protection Order not do?
It may not fix the problem. Although a Protection Order can be an important tool in helping law enforcement and courts to discourage abuse, it may not completely stop the defendant from trying to hurt the victim. The Protection Order can result in the appropriate punishment of the person against whom the order was issued if he or she violates that order.
It is not a decree of divorce, but the victim should be prepared to live apart from the abuse, at least for a time. The victim should prepare in advance if a moved is needed until the divorce is final.
While the judge may allow the victim to use or possess certain property, a Protection Order cannot be used to make permanent property divisions.
It is not to be used solely for custody matters, although the judge may determine and award temporary custody.
It should not be used to “scare” someone to improve his or her behavior. If a petition is filed, the plaintiff should be prepared to proceed in court.
Where a Protection Order be obtained?
Protection Order forms may be obtained at the Circuit Clerk’s Office. The plaintiff must ask the court for a Protection Order either in the county where the victim lives or in the county where the victim has temporarily relocated to avoid further abuse. A Protection Order may be issued even if the victim does not have an ongoing court case against the defendant or the defendant does not have pending criminal charges arising from the abuse in the county where the victim lived. If there is a pending case, then the plaintiff must file for protection in the county in which the case is pending. It is recommended that the plaintiff file in the county in which the victim resides, if possible.
How can I ask the Court for a Protection Order?
Standard court forms must be filed with the clerk to ask for a Protection Order. These forms are available in the clerk’s office in each county courthouse. Neither the clerk nor members of a judge’s staff are required to provide assistance in completing the forms. They are not permitted to give legal advice.
It may be difficult for the plaintiff to provide written details of the abuse the victim has suffered, but it is important to answer the questions in the Petition and to provide as much detail as possible. If the defendant owns a firearm or other weapon and has threatened to use it to harm the victim, the court should be made aware of this fact.
The completed Petition should be taken to the clerk’s office. The judge may or may not issue a Protection Order and set a date for a hearing before the plaintiff leaves the courthouse. If any temporary orders are signed by the judge, they are good only until the final hearing unless otherwise extended by the judge. They are not permanent orders!
Is there a charge for a Protection Order?
No. However, the judge may order that the fees be paid at the conclusion of the case.
What happens after the judge signs the Protection Order?
After the judge signs a Temporary Protection Order, a date is set for a court hearing. The clerk’s office will give to the Sheriff’s Office a copy of the order signed by the judge, a copy of the PFA Petition, and a notice of the date of the court hearing for the Final Protection Order. The Sheriff’s Office will attempt to serve copies of these papers on the defendant. The plaintiff should ensure that the Sheriff has the defendant’s work and home, day and night addresses, physical description, vehicle description, tag number of any vehicles owned by the defendant and any other information that may be helpful in locating the defendant. It is crucial that the defendant be served with the court order before the court date. If not, the hearing will be postponed because the judge cannot take testimony from the plaintiff and the plaintiff’s witnesses until the defendant is officially served.
If the plaintiff does not receive an order or notice of court date within several days after filing the Petition he or she should, call the clerk’s office. The plaintiff/victim must appear for the hearing or face potential consequences which may include, but are not limited to, dismissal of the case, being responsible for court costs, or loss of child custody. Failure to appear for the hearing does not automatically result in dismissal. Only the court may dismiss the case.
What happens if the defendant violates the Protection Order?
Violations of a Protection Order may be punished as contempt of court and may be charged as a Class A misdemeanor for which the abuser may be arrested with or without a warrant.
If the judge in a case finds that a defendant violated a Protection Order, the first violation is a Class A misdemeanor punishable by up to a year in jail and a fine of up to $2,000.00.
A finding of a second violation of a protection order requires, in addition to any fine and sentence imposed a minimum of 48 hours in jail. On a finding of a third violation, the defendant must spend 30 days in jail. Required jail time cannot be suspended.
A law enforcement officer may arrest the violator of a protection order without a warrant at any time of the day or night when the officer has probable cause to believe that an act has been committed in violation of a valid protection order, even if the officer did not personally see the violation. The plaintiff may also request that a warrant be issued against the defendant by a judge or magistrate for violation of the protection order in either the district court of the county where the offense occurred or in the municipal court if within municipal police jurisdiction. For the victim to have a warrant issued, they will need to have a police report made and bring a copy to the District Attorney’s Office.