Order of Protection in Arizona
What You Need to Get an Order of Protection in Arizona
Allegations Needed to Get an Order of Protection
An Order of Protection is a court order prohibiting someone from having contact with you and anyone else named as a protected party on the Order of Protection. To be eligible to get an Order of Protection, the defendant must have a “familial type relationship” with you.
The terms “familial type relationship” means that the other person is either a relative of yours or is a relative to you by marriage or personal romantic relationship. For example, a husband and wife have an obvious family relationship.
However, a boyfriend or ex-girlfriend is also deemed to be of a sufficient familial type relationship to be the type of relationship for which you can obtain an Order of Protection. If you do not have a familial relationship with someone that is bothering you, you would need, instead, to seek an Injunction to Prohibit Harassment.
Next, the person against whom you are trying to obtain an Order of Protection must have committed an act of domestic violence against you or is likely to commit an act of domestic violence against you. It is important to understand domestic violence is defined by statute. If the behavior of the person does not fall within prohibited criminal conduct statutes defined as domestic violence criminal conduct, the court cannot issue an Order of Protection to you. The following list outlines all of the acts that are considered domestic violence in Arizona:
- Negligent Homicide
- Second Degree Murder
- First Degree Murder
- Threatening or Intimidating
- Aggravated Assault
- Custodial Interference
- Unlawful Imprisonment
- Sexual Assault
- Unlawful Disclosure of Pictures Depicting State of Nudity or Specific Sexual Activity
- Criminal Trespass
- Criminal Damage
- Interfering With Judicial Proceedings
- Disorderly Conduct
- Cruelty to Animals
- Preventing the Use of a Telephone to Make an Emergency Call
- Use of Electronic Communication to Terrify, Intimidate, Threaten or Harass
- Surreptitious Photographing, Videotaping, Filing or Digitally Recording or Viewing
- Abuse of a Child or a Vulnerable Adult
Each of the above-referenced domestic violence criminal statutes has different elements that must be met before the conduct will be a crime and, therefore, must be met before you will be able to get an Order of Protection against someone else.
Stated differently, someone can be doing some really bad things to you but you are still unable to be awarded an Order of Protection. It is, therefore, very important to consult with an experienced Arizona Order of Protection attorney who can explain the elements of each offense and what you need to include in your Petition for Order of Protection to ensure that Petition meets all of the elements of the relevant criminal domestic violence statutes.
You also need to inform the court in your Petition for Order of Protection what locations you want to be protected in the Order of Protection. A protected address is an address the court prohibits the defendant from visiting. The locations you can ask a judge to prohibit the defendant include your home, your place of employment, your school, your children’s school, your children’s daycare and any other place you and your children may be located.
You can also include your children on your Order of Protection if the court finds that your children have been a victim of domestic violence or have witnessed domestic violence by the defendant. Lastly, the judge has the option of ordering the defendant to turn over all firearms he or she owns to a local law enforcement agency.
All Orders of Protection in Arizona are registered in a central database. This means any law enforcement officer can look up the Order of Protection, can confirm it has been issued by a judge and can confirm the Order of Protection has been served on the defendant. This allows law enforcement officers to quickly confirm a valid protective order has been issued to enable them to enforce that protective order.
Serving the Order of Protection
If you are granted the Order of Protection, you still must have the Petition for Order of Protection and Order of Protection served on the defendant. You can use a private process server or a law enforcement officer. We recommend using a law enforcement officer for security reasons. The law enforcement officer will then complete and file an affidavit of direct personal service of the Petition and Order of Protection.
Most police officers will allow the defendant to retrieve clothing and personal belongings from the home when they serve the Order of Protection. These situations are referred to as a civil standby. Law enforcement officers are more than happy to act as a civil standby because they recognize the need to proactively prevent family violence in situations like these.
Where You Get an Order of Protection
If you have a pending family law case, you are required to file your Petition for Order of Protection in the Superior Court in the county in which you reside. You should not file the Petition for Order of Protection in a justice or city court. However, if it is an emergency any court, including justice or city courts, is required to hear your Petition for Order of Protection and grant or deny it regardless if it should have been filed in the Superior Court.
If you do not have a family law case involving the defendant, you may file your Petition for Order of Protection in a city court, justice court, or Superior Court.
How You Can Modify an Order of Protection
Your order of protection can be modified in several ways. First, you can voluntarily go to court and ask the court to modify your Order of Protection. Alternatively, the court can modify the Order of Protection after a hearing has been requested by the defendant and the court modifies it after hearing testimony from you and the defendant.
Lastly, a judge in a family law case may modify an Order of Protection in the context of issuing child custody and parenting time orders so long as the defendant has not already requested a hearing on the Order of Protection.
Violating an Order of Protection
Defendant Violates the Order of Protection
A person who violates an Order of Protection can be arrested and charged with a class one misdemeanor for “interference with a judicial proceeding”. Even though the violation is not occurring inside a courtroom, the mere violation of the order is sufficient to constitute the crime of interference with an Order of Protection. Repeated violations can also result in criminal felony charges including, but not limited to, stalking charges that can lead to years in prison.
Plaintiff Violates the Order of Protection
So, what happens when the person who has an order of protection violates it by initiating contact with the defendant. For example, what happens if the mother gets an Order of Protection against the father of the parties’ children, mother then shows up at the children’s soccer game occurring during Father’s custodial time, and then calls the police claiming Father violated the Order of Protection because he wouldn’t leave the soccer game when she arrived during his parenting time.
Well, I can tell you it didn’t work out well for the mother abusing the Order of Protection when Hildebrand Law, PC represented a father in one such scenario. Our attorney was able to speak to the police officer over the phone and was able to convince the officer that not Father did not violate the Order of Protection but that Mother committed the criminal act of “facilitation of interference with a judicial proceeding”. Mother was arrested and stopped abusing the Order of Protection.
How You Can Fight an Order of Protection
Orders of Protection are helping to protect people. However, judges are well-aware people abuse the Order of Protection process by making false and misleading allegations of domestic violence. It is unfortunate people would actually abuse someone else by taking out an Order of Protection based on nothing but lies. If this happens, you have a couple of options.
Option #1: Do nothing. That’s right, you can do absolutely nothing. Most people believe the fact the judge issued the Order of protection believes you did something wrong. Further, they believe the issuance of an Order of Protection means a legal determination of wrongdoing has been made by a judge.
When a judge is deciding to issue an Order of Protection he is legally required to only decide that “if the allegations are true” whether they meet the statutory definition of domestic violence. It is not, therefore, a judge making a determination you did anything wrong. The downside to this approach is that the person who obtained the Order of Protection could begin making false allegations to law enforcement indicating you have violated that Order of Protection, which could lead to your arrest and subsequent criminal charges.
Option #3: Fight the Order of Protection. You are entitled to only one hearing on the Order of Protection. Order of Protection hearings is scheduled within five days of your request for a hearing if you were removed from your home and within ten days of your request for a hearing if you were not removed from your home.
This gives you very little time to prepare for a trial on the contested issues. You should make sure you accumulate all of your evidence, including witnesses and any documents you may need, such as police reports, before you request a hearing on your Order of Protection.
Chris Hildebrand wrote this article about an Order of Protection in Arizona to ensure everyone has access to information about Order of Protection laws in Arizona. Chris is a family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through an Order of Protection case should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through.