Procedures Applicable to a Defendant in a Protection Case - If a Temporary Order is Issued and Served

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A. If a Temporary Order is Issued and Served: After service of any temporary order, the defendant may file with the court a written request to dissolve the order. The defendant has a right to a hearing on his/her motion to dissolve upon at least 48 hours notice to the plaintiff, unless a shorter time is set by the judge. If the defendant brings a motion to dissolve, he/she should ask the court for a hearing date and time. The clerk will arrange for service on the plaintiff of the written motion to dissolve and the notice of hearing.

On or before the hearing date, the defendant must file an affidavit stating why or how the plaintiff's complaint is inaccurate. The judge may combine any dissolution hearing with an accelerated final hearing on the plaintiff's underlying complaint for protection. In either event, the hearing is conducted pursuant to the procedures set forth in IV(B) below, "The Final Hearing."

In an abuse, sexual assault or stalking case, the temporary order can direct the defendant not to possess any firearms or dangerous weapons, if the complaint indicates abuse, sexual assault or stalking involving a firearm or dangerous weapon, or a heightened risk of immediate abuse to the plaintiff or a child. If the temporary order prohibits possession of dangerous weapons other than firearms, the order will specify what weapons are prohibited. A defendant prohibited from possession of firearms or other dangerous weapons must turn over any prohibited items to a law enforcement officer or other person within the time stated in the temporary order (24 hours or less after the temporary order is served on the defendant). If the defendant chooses to turn over the prohibited items to a person other than a law enforcement officer, the defendant must file within 24 hours a statement identifying that person and listing all items turned over to the person. That statement may be filed with either the court or a local law enforcement agency.

If a temporary order of protection from abuse prohibits possession of firearms or dangerous weapons, the defendant may move to dissolve that portion of the order and the court will hold a hearing as soon as the court's schedule permits. The court will issue a written decision within 24 hours of that hearing.

The defendant should read any temporary order carefully. Unless and until the temporary order is vacated, the defendant must obey that order. Otherwise, the defendant is subject to arrest and criminal charges. The plaintiff cannot change the terms of any temporary order and cannot give the defendant permission to violate any terms of the temporary order. If the order states that the defendant is prohibited from entering the shared residence, the defendant will be charged with a crime if he/she enters the shared residence even if the plaintiff has invited the defendant to enter. Violation of a temporary order is a Class D crime that carries penalties up to 364 days in jail and/or a fine up to $2,000.00.

Note: Unless a temporary protection order explicitly prohibits contact between the plaintiff and the defendant, such an order does not prohibit contact, so long as such contact is not abusive or harassing.

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