Procedures Applicable to a Plaintiff in a Protection Case - Temporary Protection Orders

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G. Temporary Protection Orders. A plaintiff in immediate danger of abuse, sexual assault, stalking or harassment may request a temporary protection order by checking the appropriate box on the complaint form. Sign the complaint in the presence of the clerk, notary or an attorney.

The clerk will then present the complaint and the request for a temporary protection order to a judge when one is available. The plaintiff should wait at the courthouse until the judge is available. If a judge will not be available there, the clerk will make alternative arrangements. These may include going to another court or use of telephones and fax machines to provide a review of the complaint. The plaintiff should follow the clerk's instructions in these cases.

If the judge is satisfied that the allegations set forth in the complaint justify a temporary protection order, the judge may sign the order. In the case of a complaint based on abuse, sexual assault or stalking, if the judge is not satisfied or has questions regarding the allegations in the complaint, the judge will interview the plaintiff. If granted, a temporary order of protection remains in effect until any of the following happens: a final order of protection is served on the defendant; an order modifying the temporary order is entered; an order vacating (terminating) the temporary order is entered. The plaintiff must appear at the court on the hearing date.

In a case based on abuse, sexual assault or stalking, the temporary order can direct the defendant not to possess any firearms or dangerous weapons, if the complaint demonstrates abuse, sexual assault, or stalking involving a firearm or dangerous weapon, or shows 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).

The relief available in a temporary order of protection is more limited than the relief available in a protection order issued after service on the defendant and notice of hearing.

In an abuse, sexual assault or stalking case, the temporary order can:

  • award temporary exclusive parental rights and custody of children; and
  • require the defendant to turn over firearms to a law enforcement officer or third party.

In both abuse, sexual assault and stalking cases and harassment cases, the temporary order can:

  • prohibit the defendant from having direct and indirect contact with the plaintiff or a minor;
  • prohibit the defendant from restricting the plaintiff's liberty;
  • prohibit the defendant from threatening, assaulting, attacking, molesting, harassing or otherwise disturbing the peace of the plaintiff;
  • prohibit the defendant from entering the plaintiff's residence;
  • prohibit the defendant from following the plaintiff or a minor, or going to the plaintiff's home, workplace or school without reasonable cause, and
  • prohibit the defendant from taking, damaging or destroying the plaintiff's property or pets.

Note: Unless a temporary order for protection explicitly prohibits contact between the plaintiff and defendant, such an order does not prohibit such contact, provided such contact is neither abusive nor harassing. A temporary order is effective once signed by a Judge. The order must then be served on the defendant before the defendant can be charged with a crime for violating the order, UNLESS a defendant has prior actual notice of a protection order. Usually, the complaint and all related papers are also served at the same time as the temporary order.

See Section H for information about service of temporary orders.

The defendant has a right to request the court to dissolve a temporary order on at least 48 hours notice to the plaintiff, unless a shorter time is set by the judge. If defendant files a motion to dissolve, a hearing on the motion is held. The plaintiff must prove through evidence any facts alleged in the complaint that the defendant has disputed by affidavit (sworn statement). The judge may decide to consolidate (combine) the hearing on defendant's motion to dissolve with the final hearing on the plaintiff's complaint. Whether or not consolidated with final hearing, a hearing on a motion to dissolve follows the procedures set forth in section III(J) below, entitled "The Final Hearing."

If the judge decides not to issue a temporary order, the plaintiff may decide not to proceed with the case. Unless the case is dismissed at the request of the plaintiff, it will be scheduled for final hearing. An abuse case must be scheduled for hearing within 21 days of when the complaint is filed with the court. A harassment case will be scheduling for hearing when the court's schedule permits.

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