Frequently Asked Questions: Orders of Protection

Basic Handout on OOPs (MS Word Format)

What is an Order of Protection?

An Order of Protection is issued by the Chancery court when a chancellor finds that someone (called the "petitioner") has been threatened or harmed by a "respondent" (the accused abuser) and is in immediate and present danger of domestic abuse or will be in immediate and present danger upon the accused abuser's release from incarceration. [see samples]

In more simple language:

An Order of Protection is a document issued by the Circuit Court to help protect you from harassment or abuse. In an Order of Protection, a judge can set limits on your partner's behavior. Among other things, the judge can:

• Order your partner to stop abusing you and your children; 
• Tell your partner to leave and stay away from your home, your workplace, and your family; 
• Direct your partner to have no contact with you-including no phone calls, letters, or messages through other people; and 
• Order your partner to stay away from the children, their babysitter, day care, or school. 
  

 

What does the petition for an Order of Protection look like?

Each county in Arkansas can have it’s own different petition form, but they will all gather essentially the same information. The model petition, found in Arkansas Code section 9-15-203, is found here. It’s good to have a look over this before you get ready to fill out your petition, to make sure you have as much of this information with you as possible. [see samples]

 

 

Where do I go to file for an Order of Protection?  

You can get a petition to file for an Order of Protection from the Circuit Clerk’s Office, battered women’s shelters and advocates, victim assistance programs, and other programs that support victims of domestic violence. Circuit Clerk's Offices can be found in your County Seat. 

• For Washington County, the Clerk's office is in the Washington County Courthouse - 280 N. College / Fayetteville, AR 72701 / (479) 444-1542
  
• For Carroll County, the Clerk's office is in the Carroll County Courthouse -  210 W. Church St. / Berryville, AR 72616 / (870) 423-2422
  
• For Madison County, the Clerk's office is in the Madison County Courthouse - 1 Main St. / Huntsville, AR 72740 / (479) 738-6721 
  
• For Benton County, the Clerk's office is in the Bentonville County Courthouse - 215 E. Central, Suite 217 / 
  Bentonville, AR 72712-0699 / (479) 271-1013
  
• For information on other courthouses, see the links below (external links):
  http://www.rootsweb.com/~armissis/ar_court.htm 
  http://www.genealogy.com/00000233.html?Welcome=1093535408  
  

Why should I get an Order of Protection?

While an Order of Protection cannot guarantee your safety, it can help in several ways: 

• Police are likely to take your calls more seriously if you have an Order of Protection;
• An OOP gives law enforcement a more powerful tool to help make you safe;
• An abuser can be arrested and put in jail immediately if he violates an Order of Protection;
• If you have left your home, an Order of Protection can make it easier for you to get the police to go with you to get your personal belongings;
• If you are being stalked or harassed at work, an Order of Protection can protect you at your job;
• An OOP sends a strong signal to the abuser – abuse will not be tolerated by either the victim OR the legal system; 
• An OOP sends a strong signal to any children involved that abuse is not OK; 
• An OOP can alert others around you to the seriousness of the situation.

Orders of Protection can be helpful, but they do not guarantee that your partner will stop being violent. Some abusers choose not to obey these orders and they have to be enforced by authorities. You may have to call police for help and you may have to go back to court. This should not discourage you from using the law to help make you safe. Know your rights!

You are the best judge of whether or not an Order of Protection will be helpful in your situation. Members of battered women's support groups and domestic violence advocates can help you decide whether getting an Order of Protection is a good strategy for you. Your local domestic violence program (Peace at Home Family Shelter, Fayetteville) can also provide help and information if you need assistance in getting an Order of Protection or in having an existing Order enforced. 

 

Can I file for an Order of Protection in a different county, or do I have to file where the abuse took place?

The petition shall be filed in the county [1] where the petitioner resides, [2] where the alleged incident of abuse occurred, or [3] where the respondent may be served. [location in AR Code] 

 

 

Who can file for an Order of Protection? 

A petition for an Order of Protection may be filed by: 

1. Any adult family or household member* on behalf of himself or herself; 
2. Any adult family or household member on behalf of another family or household member who is a minor, including a married minor; 
3. Any adult family or household member on behalf of another family or household member who has been adjudicated an incompetent; or 
4. An employee or volunteer of a domestic violence shelter or program on behalf of a minor, including a married minor.
   [location in AR Code] 

*Family or Household Member - this means that if you are the victim, you can get an OOP against your:

For what reasons can someone get an Order of Protection?

The judge must find that you are in [1] an immediate and present danger of domestic abuse or [2] that the respondent is scheduled to be released from incarceration within thirty (30) days, and upon the respondent's release there will be an immediate and present danger of domestic abuse. [location in AR Code] 

 

How much does it cost to file for an Order of Protection? 

There is no cost or filing fee to petition the court for an Order of Protection. Note, however, that in some counties, in some situations, dropped charges are being interpreted as having been "false claims", in terms of assessing court costs. In some counties, therefore, the first Order of Protection is free, and each one after one is dropped is going to cost the petitioner a fee, as one cannot get an Order of Protection unless all previous court costs have been paid. Also, if you seek your own attorney, you may incur a cost for legal services. [location in AR Code] 

 

 

Do I need a lawyer to file an Order of Protection?

No, you do not need a lawyer to file for an Order of Protection, but it may be better to have one.
If your abuser has a lawyer, you should try to get one too. Even if your abuser does not have a lawyer, it is recommended that you contact a lawyer to make sure that your legal rights are protected. Advocates are also available to assist you in this process, 24 hours a day, 7 days a week. 

 

 

Can I get an Order of Protection against my husband, even if we’re already getting a divorce?

The petition may be filed regardless of whether there is any pending litigation between the parties. [location in AR Code] 

 

 

Once I file for an Order of Protection, how long will it be before I go to court?

The circuit court, according to Arkansas Law, shall order a hearing to be held no more than thirty (30) days from the date on which the petition is filed or at the next court date, whichever is later. Note that nothing in the law says that the court cannot set an earlier hearing. [location in AR Code]

 

 

How far in advance must the respondent be served notice to appear in court?

At least five (5) days prior to the date of the hearing. If service cannot be made on the respondent, the court may set a new date for the hearing. [location in AR Code]

 

 

What if the Respondent is not served with the court papers prior to the hearing date? 

Even if the Respondent is not served, you must still appear at the scheduled court date. The case will most likely be continued (a new hearing will be scheduled), but your Ex Parte Order will remain in effect. If you do not appear, your Ex Parte Order will be dismissed and you will most likely be assessed court costs. [see more on this topic]

 

 

How long does an Order of Protection last?

Not less than ninety (90) days, and not more than two (2) years. The Order of Protection may be renewed at a subsequent hearing upon proof and a finding by the court that the threat of domestic abuse still exists. [location in AR Code] 

 

 

Do I have to put my address on the petition for the Order of Protection? 

No, you are not required to put your address on the Petition. Where the petition asks for your name and address, write your name only. The clerk may have you put your address on a separate form, but this form should not be shown to anyone outside of the court. Be sure to let the clerk know if you address changes at any time. [location in AR Code]  [see sample petitions]

 

 

What happens after I submit my petition for the Order of Protection? 

The petition will then be presented to the judge. In most counties you will have no contact with the judge during this process. Some judges may ask to speak to you to clarify questions they have about the petition, but this is not generally the case. Usually the judge will set a date for the hearing on the Ex Parte Order right away. Sometimes the date for the hearing will be set at the time the Respondent is served, and you will be notified later. The Ex Parte Order of Protection (also known as the Temporary Order of Protection) only remains in effect until that court date.

 

 

Will the respondent see what I wrote in my petition? 

Yes. At the time that the Respondent is served with the Ex Parte Order of Protection, they also receive a copy of the petition containing the allegations you have made against them. [location in Arkansas Rules of Criminal Procedure]

 

 

Am I allowed to have contact with the Respondent prior to the court date? 

While you are not prohibited from contacting the Respondent prior to the court date on the Ex Parte Order, it is not a good idea. If you initiate contact with the Respondent, it may say to the court that you are not truly afraid for your safety. This may hurt your chances of getting your Order of Protection granted at the time of the hearing. In some cases, if law enforcement officers know of your ongoing contact with the respondent, they may become reluctant to enforce your temporary Order, as well. For your own safety, avoid all contact with the respondent prior to the court date. 

 

 

How long does a Temporary Order of Protection (TOP) last? 

A temporary order of protection shall be effective for a fixed period not to exceed thirty (30) days. [location in AR Code] 

 

 

What does ex parte mean? 

Upon or from one side only; one-sided; partial; as, an ex parte statement. 
In this context, it means that the judge is hearing only one side of the story, in order to decide whether to issue a temporary Order of Protection. An ex parte temporary order of protection may include any or all of the orders provided for in §§ 9-15-201 and §§ 9-15-203. 

 

 

On the petition for an Order of Protection, who is the respondent?

In relation to the Order of Protection, this is the person against whom the Order of Protection is being filed – presumed to be the abuser.  

 

 

On the petition for an Order of Protection, who is the petitioner?

One who presents a petition. In relation to the Order of Protection, this is the person filing for an Order of Protection against another – presumed to be the victim.

 

 

Does an officer need a warrant to arrest someone who is violating an Order of Protection?

When a law enforcement officer has probable cause to believe that a respondent has violated an order of protection and has been presented verification of the existence of the order, the officer may, without a warrant, arrest the apparent violator whether the violation was in or outside the presence of the officer if the order was obtained according to this chapter and with the Arkansas Rules of Criminal Procedure. [*More details on warrantless arrest here.]

 

 

What if I have an out of state protection order? Will it be enforced in Arkansas? How? 

Yes, it will be enforced. See this section of Arkansas Code for details. 

 

 

Can I drop an Order of Protection?

Once the Order has been issued by a judge, NO. Once the Order has been issued, it is then a valid order of the court. The defendant/respondent can still be arrested. For instance, if your Order requires that the defendant stay away from your home, and you invite him/her over, he or she can still be arrested for violating the Order. An Order of Protection cannot be changed by you or the defendant/respondent - it can only be changed by the issuing court. So, if you would like to cancel the order, you will have to go back to court and prove to the court that you are no longer in need of the Order.

 

 

Can I modify an Order of Protection? 

It depends. You will likely have to have another court hearing before you can modify, extend, or cancel your Order.  In order to renew or extend the Order, you will have to go back to court and prove that the threat of domestic abuse still exists. 

 

 

Can *I* get in trouble for approaching or communicating with someone if I have an Order of Protection against them?

While you as the petitioner are not legally prohibited from contacting the Respondent (or any other action) while an Order is in effect, it is not a good idea. If you initiate contact with the Respondent, it may say to the court and law enforcement that you are not truly afraid for your safety. This may hurt your chances of getting your Order of Protection enforced, or getting an extension, or obtaining another Order in the future. For your own safety, avoid all contact with the respondent! [*Note - some courts and law enforcement agencies are attempting to punish petitioners for their actions while an Order is in effect, however there is no legal basis for these sorts of actions.]  [see samples]

 

 

What do I do if the respondent violates the Order of Protection?

Call the police or sheriff department immediately and show them your Order of Protection. Violating an Order of Protection is against the law. Tell the officers you have an Order of Protection and the defendant is violating it. In some cases, the defendant can be arrested immediately. Otherwise, ask the police or sheriff department to advise you as to what to do next.

 

 

I don’t want to leave the house because it is the only house my children have ever known. What should I do?

It is understandable that you want to keep the children in a place where they are comfortable, but this should not be the only reason to stay. Children will adjust to a new place and may even benefit if there is more money to spend on things other than the rent or mortgage. Safety should be the primary consideration. It is frequently safer to relocate to a shelter or another location unknown to your abuser, at least for a period of time. In Washington, Madison and Carroll Counties, you can call the Peace at Home Family Shelter, day or night, and an advocate there will help you through this whole process. 479-442-9811 | 877-422-9811 (toll free). 

 

 

How do I get my personal belongings if I have been ordered to stay away from my home? 

You may request the court to allow you to enter your home to obtain your personal belongings. A law enforcement officer must always be present when you enter your home, if you choose to do this. In some areas, you may be able to request a law enforcement officer to accompany you to your home to obtain your personal belongings without a court order. This is known as a "civil standby". 

 

 

Can you help me get my property back from my old roommate, husband, or wife?

This is considered a civil matter between you and your roommate, husband or wife. Police departments cannot get involved in these matters, and Orders of Protection generally do not cover such property matters. All civil matters are handled through the court.

 

If we both show up at the same place, does one of us have to leave? 

There is generally nothing that stops both of you from being in the same public place at the same time. For example, if you are at the grocery store and the other party is at the grocery store, as long as the respondent does not approach, abuse, harass or intimidate the protected party there is no violation of the Order of Protection. 

If you feel you need help in stopping "harassing behavior" that does not fall under an actual violation of the Order of Protection, you may talk to your attorney about amending your order and/or speak to the police/prosecutor about filing charges for harassment. 

 

 

Does an Order of Protection automatically exclude someone from having guns? 

No. You may ask to have guns removed from the home of your abuser in your petition for an Order of Protection for the time period covered by the OOP. See this section on Federal Gun Laws and Domestic Abuse for more information. 

*If your abuser is in the military or is a law enforcement officer, there is a federal exemption allowing these individuals to carry a service weapon while on duty. If there is a conviction of a domestic abuse crime, these individuals no longer have exemption.

If you look at the sample forms from Washington County, below, you will see that  there is a place for a judge to prohibit the respondent from possessing or receiving firearms during the term of the Order. [see samples]

 

 

What’s the difference between an Order of Protection and a Restraining Order? A No Contact Order?

In Arkansas, there are three types of court orders commonly used to protect victims of domestic violence:

• Orders of Protection, 
• Mutual Restraining Orders, and 
• No Contact Conditions of Release. 

See Handout from the Office of the Prosecutor

People often use these terms interchangeably, but it is absolutely critical for you to understand the differences between each type of court order. Orders of Protection are being explained throughout this document, and below you will find information on No Contact Orders and Restraining Orders. 

Restraining Order / Mutual Restraining Orders

A restraining order is different than an Order of Protection. Restraining orders are usually issued only in divorce cases. Violations of restraining orders are enforced by the issuing court rather than through criminal prosecution in District Court. However, a violation of an Order of Protection is a Class A Misdemeanor in the State of Arkansas, and therefore, if an Order of Protection has been issued and served on a person who subsequently violates terms of the order, the police are allowed under Arkansas law to arrest that person if they have probable cause. Restraining orders are done through chancery court. You will need a private attorney for this matter.

What is a Mutual Restraining Order?

A Mutual Restraining Order is a court order generally used in divorce cases. The Mutual Restraining Order lasts until the final divorce decree and is issued against both parties. If the restraining order is violated by either party, the charge is contempt with a punishment of up to $50 and/or 10 days in jail. 

Is a Mutual Restraining Order the only action I can take if I am being abused while seeking a divorce?

No. Actually, an attorney representing a woman getting a divorce should not seek a Mutual Restraining Order over an Order of Protection because the ramifications of violating a Mutual Restraining Order are minimal, while punishment for violation of an Order of Protection is more substantial.

If you have a Mutual Restraining Order, you will probably still want to seek an Order of Protection.

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No Contact Order 

An Order of Protection is handled by the Prosecutor’s Office and usually issued only for cases including family or household members. A No Contact Order is a pre-trial order issued by a court when a charge of Harassment, Harassing Communications, or Terroristic Threatening is filed in court by a prosecutor. These No Contact Orders remain in effect until the trial date of the Defendant. Depending on the outcome of the trial, the No Contact Order may either be extended as part of a guilty judgment against the Defendant or set aside by the Court. 

In a domestic violence case, a No Contact Order is only available when the offender has been arrested, and these orders are much more limited than Orders of Protection in the relief they can offer. When criminal charges are involved, a No Contact provision can be made a condition of bond or pretrial release when the victim requests it (or by an attorney on the victim's behalf). 

No Contact Orders are mandated as a condition of pretrial release when the defendant is charged with one of the following crimes: 

• Stalking, 
• Terroristic Threatening 
• Harassment 
• Harassing Communications, and/or 
• Unauthorized Computerized Communications. 

Upon pretrial release of the defendant, a judicial officer will enter a No Contact Order in writing and will give notice to the defendant of possible penalties. 

What are the benefits to a No Contact Order?

Although No Contact Orders are not a substitute for Civil Orders of Protection, No Contact Conditions placed on a defendant at pre-trial or post-trial release in domestic abuse cases can be an additional tool for ensuring your safety. It is critical to note that this No Contact Order does NOT address issues of financial support or child custody. Therefore, it may be important for you to also seek a Civil Order of Protection, which can address the crucial matters of financial support and child custody. 

What happens if a No Contact Order is violated?

Violating the Conditions of Release gives law enforcement the authority to arrest a defendant who has violated a condition of his pretrial release and bring him before a Judge. The officer must have reasonable grounds to believe that a violation of the terms of the Release Order has occurred.

The Judge can either impose different or additional Conditions of Release upon the defendant or revoke his release. The actual statute (5-4-309(b)-Violation of Conditions-Arrest, Revocation and Sentencing) states: "at any time before the expiration of a period of suspension or probation, any law enforcement officer may arrest a defendant without a warrant if the officer has reasonable cause to believe that the defendant has failed to comply with a condition of his suspension or probation." 

Therefore, if the abuser violates a No Contact Order of probation or suspended sentence, the defendant will be brought before the criminal court to determine if his probation will be revoked or if his suspended sentence will be imposed. The court may also impose additional sanctions.

Where do I file for a No Contact Order?

An order for a defendant to have no contact with you and your family may be issued by Circuit and Municipal courts in association with criminal charges, as either a condition of the abuser's pretrial release/bond or as a condition of probation.

No Contact Orders are usually requested in the course of a regularly scheduled proceeding; thus, no separate hearing is required. There are no forms for you to fill out and your presence at trial and testimony are not required to get the order. Additionally, because the defendant is present at the proceeding in which the No Contact Order is requested, the abuser/defendant can be served in open court and place his actual signature on the No Contact Order form. This alleviates any questions about valid service for law enforcement, and puts the No Contact Order into immediate effect.

(above from http://www.womenslaw.org/AR/ar_how_to.htm#nocontact & http://www.russellvillearkansas.org/depts/law/faq.htm) 

Of the three, the Order of Protection definitely offers a victim the most protection from an abuser, as well as giving law enforcement a strong tool with which they can immediately deal with violators. A victim may have more than one type of "stay away order" in effect at any given time - one does not exclude the others.

 

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What Can Orders of Protection Do for Victims?

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Can the judge make my abuser leave our home?

Yes. Using an Order of Protection, a judge may order exclusive possession of the home to you and prohibit the other party from entering that home. However, it is frequently safer to relocate to a shelter or other location unknown to your abuser, at least for a period of time. [location of more information in AR CODE] 

 

Can I keep the abuser away from where I work or go to school?

Yes. There is a remedy that may order the respondent (abuser) to stay away from your work or school or other places you specify when you file your petition. [location of more information in AR CODE] 

 

Can I ask the judge to give me possession of my personal property?

Yes. You may ask the judge for sole possession of your personal property. If the other party has your personal property in his or her possession, the judge may order that the other party make that property available to you. In order for you to ask for the property, it must be your sole property. If it is joint property, the judge must balance the hardships and determine whether or not to grant you possession of the property. The court will usually not deal with issues concerning property at this hearing. [location of more information in AR CODE] 

 

Is there any way to stop the other party from coming and damaging my property?

Yes. The judge may order that the other party is forbidden from taking, transferring, encumbering, concealing, damaging or otherwise disposing of any real or personal property, except as specifically ordered by the judge. 

The following is straight from Arkansas Code Section 9-15-205:

(a) At the hearing on the petition, the circuit court may provide the following relief: 

(1) Exclude the abusing party from the dwelling which the parties share or from the residence of the petitioner or victim; 
(2) Exclude the abusing party from the place of business or employment, school, or other location of the petitioner or victim; 
(3) Award temporary custody or establish temporary visitation rights with regard to minor children of the parties; 
(4) Order temporary support for minor children or a spouse, with such support to be enforced in the manner prescribed by law for other child support and alimony awards; 
(5) Allow the prevailing party a reasonable attorney's fee as part of the costs; 
(6) Prohibit the abusing party directly or through an agent from contacting the petitioner or victim except under specific conditions named in the order; and 
(7) 
(7A) Order such other relief as the court deems necessary or appropriate for the protection of a family or household member. 
(7B) The relief may include, but not be limited to, enjoining and restraining the abusing party from doing, attempting to do, or threatening to do any act injuring, mistreating, molesting, or harassing the petitioner. 
[*In addition, under some circumstances, the respondent my be forbidden under federal law from possessing any firearm or ammunition in or affecting commerce (or shipping or transporting any firearm or ammunition in interstate or foreign commerce, or receiving any such firearm or ammunition). See this page for more information on this topic.] 

(b) Any relief granted by the court for protection under the provisions of this chapter shall be for a fixed period of time not less than ninety (90) days nor more than two (2) years in duration, and may be renewed at a subsequent hearing upon proof and a finding by the court that the threat of domestic abuse still exists.