We want to talk to you about what a judge should do, in an Order of Protection Hearing, when a person raises new allegations not included in the Petition for Order of Protection in Arizona.
A person applying for an Order of Protection in Arizona must include allegations for an order of protection in Arizona that constitute acts of harassment or acts of domestic violence.
A court will issue an Order of Protection if the judge upon reading allegations for the order or protection included in the Petition for Order of Protection concludes that at least one of the allegations, if true, would constitute acts of harassment or domestic violence.
An Order of Protection issued by a judge in Arizona will then be served upon the defendant.
That defendant has the right to request a trial to present his or her side of the case to determine if the Order of Protection should be dismissed, modified or kept in place.
So, what happens when the person who obtained the Order of Protection begins making new allegations during that trial and those allegations were not included in the original Petition for Order of Protection?
Allegations Not Included in the Petition for Order of Protection
The Arizona Court of Appeals in the reported decision in the case of Savord vs. Morton answered that question.
In the Savord case, Mr. Morton was served with an Order of Protection that prevented him from having contact with his child and his child’s mother, Ms. Savord.
Mr. Morton wanted to contest the allegations in the Order of Protection and requested a trial on the Order of Protection.
During the trial, Ms. Savord was allowed to testify about additional allegations that she did not make in her Petition for Order of Protection.
Mr. Morton appealed that decision based on his claim that the trial court’s decision to allow Ms. Savord to testify about additional allegations not listed in her Petition for Order of Protection violated his constitutional right to Due Process.
In reviewing the trial court’s decision to allow Ms. Savord to make additional allegations not listed in her Petition for Order of Protection during the Order of Protection trial, the Arizona Court of Appeals indicated that the issuance of an Order of Protection is a very serious matter because it carries with it “collateral legal and reputational consequences”.
The Court of Appeals found that the trial court’s decision to allow Ms. Savord to testify about allegations not included in her Petition for Order of Protection violated Mr. Morton’s constitutional Due Process rights because he did not have sufficient prior notice of the additional allegations and was deprived of a fair trial regarding those allegations.
As a result, the Court of Appeals concluded Mr. Morton was deprived of a fair opportunity to prepare a defense to the additional allegations.
The Court of Appeals advised that the better practice for a judge in that situation would be to either sustain the objection and not permit the person who obtained the Order of Protection to testify regarding anything other than the allegations specifically alleged in the Petition for Order of Protection.
Alternatively, the Court of Appeals indicated the judge could allow the person to file an Amended Petition for Order of Protection to include the additional allegations and continue the trial on that amended petition to a later date to allow the defendant to have sufficient prior notice of the hearing to prepare a defense to the additional allegations.
An interesting aspect of this appeal occurred when the Court of Appeals quashed the Order of Protection instead of remanding the case back to the trial court to correct the error.
This was likely done because the Order of Protection likely expired by the time the Arizona Court of Appeals rendered its decision on this appeal.
If you have questions about allegations for an order of protection in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona restraining order and family law attorneys have over 100 years of combined experience successfully representing clients in restraining orders and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona restraining order or family law case around today.
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About the Author: Chris Hildebrand has over 26 years of Arizona family law experience and received awards from US News and World Report, Phoenix Magazine, Arizona Foothills Magazine and others. Visit https://www.hildebrandlaw.com.