The Domestic Abuse Act of 1991

 

9-15-101. Purpose.

The purpose of this chapter is to provide an adequate mechanism whereby the State of Arkansas can protect the general health, welfare, and safety of its citizens by intervening when abuse of a member of a household by another member of a household occurs or is threatened to occur, thus preventing further violence.

The General Assembly has assessed domestic abuse in Arkansas and believes that the relief contemplated under this chapter is injunctive and therefore equitable in nature.

The General Assembly of the State of Arkansas hereby finds that this chapter is necessary to secure important governmental interests in the protection of victims of abuse and the prevention of further abuse through the removal of offenders from the household and other injunctive relief for which there is no adequate remedy in current law.

The General Assembly hereby finds that this chapter shall meet a compelling societal need and is necessary to correct the acute and pervasive problem of violence and abuse within households in this state.

The equitable nature of this remedy requires the legislature to place proceedings contemplated by this chapter under the jurisdiction of the circuit courts. 

9-15-102. Title.

This chapter shall be known and may be cited as "The Domestic Abuse Act of 1991". 

9-15-103. Definitions.

(a) "Domestic abuse" means:   

(1) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members; or 

(2) Any sexual conduct between family or household members, whether minors or adults, which constitutes a crime under the laws of this state. 

(b) "Family or household members" means spouses, former spouses, parents and children, persons related by blood within the fourth degree of consanguinity, any children residing in the household, persons who presently or in the past have resided or cohabited together, and persons who have or have had a child in common. 

 

 

9-15-201. Petition - Requirements generally.

[*petition = petition for an Order of Protection] 

(a) All petitions under this chapter shall be verified. 

(b) 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. 

(c) A petition for relief under this chapter shall be filed in the circuit court. 

(d) A petition 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. 

(e)(1) A petition for relief shall:
(A) Allege the existence of domestic abuse;
(B) Disclose the existence of any pending litigation between the parties; and
(C) Disclose any prior filings of a petition for an order of protection under this chapter.
(2) The petition shall be accompanied by an affidavit made under oath that states specific facts and circumstances of the domestic abuse and the specific relief sought. [*This is already part of the standard petition for the OOP.]

(f) The petition may be filed regardless of whether there is any pending litigation between the parties. 

(g) A person's right to file a petition, or obtain relief hereunder shall not be affected by his or her leaving the residence or household to avoid abuse. 

[see samples]

 

 

9-15-202. Filing fees.  

(a) The court, clerks of the court, and law enforcement agencies shall not require any initial filing fees or service costs. 

(b) Established filing fees may be assessed at the full hearing. 

(c) 

(1) The abused in any domestic violence petition for relief for a protection order sought pursuant to this subchapter shall not bear the cost associated with its filing, or the costs associated with the issuance or service of a warrant and witness subpoena. 

(2) Nothing in this subsection shall be construed to prohibit a judge from assessing costs if the allegations of abuse are determined to be false. [*note - in some situations, dropped charges are being interpreted as having been false, in terms of assessing fees. In some places, therefore, the first OOP is free, and each one after one is dropped is going to cost the petitioner a fee, as one cannot get an OOP unless all previous court fees have been paid.] 

 

 

9-15-203. Petition – Form.

(a) The circuit shall provide simplified forms and clerical assistance to help petitioners with the writing and filing of a petition under this chapter if the petitioner is not represented by counsel. 
(b) The petition may be in substantially the following form: [see sample petition form]

[see samples]

 

9-15-204. Hearing - Service.

(a) When a petition is filed pursuant to this chapter, the circuit court shall order a hearing to be held thereon not later than thirty (30) days from the date on which the petition is filed or at the next court date, whichever is later. 
(b) Service shall be made upon the respondent 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. 
(c) Nothing in this section shall preclude the court from setting an earlier hearing. 

 

 

9-15-205. Relief generally - Duration.

(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 circuit 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 more on Federal Gun Laws & Domestic Abuse.] 

(b) Any relief granted by the circuit 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 ten (10) years in duration, in the discretion of the circuit court, and may be renewed at a subsequent hearing upon proof and a finding by the circuit court that the threat of domestic abuse still exists. 

 

 

9-15-206. Temporary order.

(a) When any petition under this chapter alleges an immediate and present danger of domestic abuse or 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, and the circuit court finds sufficient evidence to support the petition, the court shall grant a temporary order of protection pending a full hearing. 

(b) 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. 

(c) A temporary order of protection shall be effective for a fixed period not to exceed thirty (30) days. 

(d) When a temporary order is issued as authorized in this section, a hearing shall be set for no later than thirty (30) days from the issuance of the temporary order. 

(e) Upon the issuance of an ex parte temporary order, a copy of the order together with a copy of the petition, excluding, pursuant to court order, the address of the petitioner and notice of the date and place set for the full hearing shall be served in accordance with applicable rules of service under the Arkansas Rules of Civil Procedure. 

(f) Incarceration or imprisonment of the abusing party shall not bar the court from issuing an order of protection. 

(g)(1)(A) A petitioner may omit his or her home or business address from all documents filed with the court. 

(B) If a petitioner omits his or her address, the petitioner must provide the court with a mailing address. 

(2) If disclosure of a petitioner's address is necessary to determine jurisdiction or consider venue, the court may order the disclosure be made: 

(A) After receiving the petitioner's consent; 

(B) Orally and in chambers, out of the presence of the respondent, and a sealed record to be made; or 

(C) After a hearing, if the court takes into consideration the safety of the petitioner and finds such disclosure in the interest of justice. 

[see samples]

 

9-15-207. Protection order - Enforcement - Penalties - Criminal jurisdiction.

[also see Interstate Violation of a Protective Order]

(a) Any order of protection granted pursuant to this chapter shall be enforceable by any law enforcement agency with proper jurisdiction. 
(b) Any order of protection shall include a notice to the respondent or party restrained that a violation of the order is a Class A misdemeanor carrying a maximum penalty of one (1) year imprisonment in the county jail or a fine of up to one thousand dollars ($1,000), or both. 
(c) Any order of protection shall include a notice to the respondent 6 or party restrained that it is unlawful for an individual who is subject to a protective order or convicted of any misdemeanor of domestic violence to ship, transport, or possess a firearm or ammunition pursuant to 18 U.S.C. § 9 922(g)(8) and (9) as it existed on January 1, 2007. (d) Jurisdiction for the criminal offense of violating the terms of an order of protection shall be with the circuit court or other courts having jurisdiction over criminal matters. 
(e) 
(1) In the final order of protection, the petitioner's home or business address may specifically be excluded from notice to the respondent. 
(2) A court shall also order that the petitioner's copy of the order of protection be excluded from any address where the respondent happens to reside. 
(f) 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.] 
(g) An order of protection issued by a court of competent jurisdiction in any county of this state is enforceable in every county of this state by any court or law enforcement officer. [*This is the State equivalent of Federal Full Faith & Credit.] 

 

 

9-15-208. Law enforcement assistance.

(a) When an order is issued under this chapter, upon request of the petitioner the circuit court may order a law enforcement officer with jurisdiction to accompany the petitioner and assist in placing the petitioner in possession of the dwelling or residence or to otherwise assist in execution or service of the order of protection. 
(b) The court may also order a law enforcement officer to assist the petitioner in returning to the residence and getting personal effects. [*This usually means only basic personal belongings.] 

 

9-15-209. Modification of orders.  

Any order of protection issued by the circuit court pursuant to a petition filed as authorized in this chapter may be modified upon [1] application of either party, [2] notice to all parties, and [3] a hearing thereon. 

 

9-15-210. Contempt proceedings.

When a petitioner or any law enforcement officer files an affidavit with a circuit court which has issued an order of protection under the provisions of this chapter alleging that the respondent or person restrained has violated the order, the court may issue an order to the respondent or person restrained requiring that person to appear and show cause why he should not be found in contempt. 

 

 

9-15-211. Jurisdiction generally.

If any provision of this chapter granting jurisdiction in the chancery court is held invalid or if, for some reason the chancery court cannot exercise jurisdiction under this chapter, then pursuant to Arkansas Constitution, Article 7, § 11, the circuit court shall have jurisdiction over such matters. 

 

 

9-15-212. Effect of no contact order.

A no contact order shall prohibit the person from making contact, directly or through an agent, except under such conditions as may be provided in the order. 

 

9-15-213. Police conduct and procedure.

All law enforcement officers shall follow the same procedures as outlined in § 16-90-1107.

 

9-15-214. Denial of relief prohibited.

The circuit court shall not deny a petitioner relief solely because the act of domestic or family violence and the filing of the petition did not occur within one hundred twenty (120) days. 

 

 

9-15-215. Factors in determining custody and visitation.

[*Notice that this section really talks about temporary custody & visitation only. In Washington County, you will find that there is not a place to request child custody or visitation on the petition form - this has been removed by the Court, because the judges rarely grant such provisions. They prefer to refer this to family court.] 

(a) In addition to other factors that a circuit court shall consider in a proceeding in which the temporary custody of a child or temporary visitation by a parent is at issue and in which the court has made a finding of domestic or family violence, the court shall consider: 
(1) As primary the safety and well-being of the child and of the parent who is the plaintiff of domestic or family violence; and 
(2) The defendant's history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person. 
(b) If a parent is absent or relocates because of an act of domestic or family violence by the other parent, the absence or relocation is not a factor that weighs against the parent in determining custody or visitation. 
(c) There shall be a rebuttable presumption that it is not in the best interest of the child to be placed in the custody of an abusive parent in cases where there is a finding by a preponderance of the evidence that a pattern of abuse has occurred. 

[see samples]

 

9-15-216. Mutual orders of protection - Separate orders of protection.

[*Note – mutual orders of protection & separate orders of protection are not the same thing.] 

(a) Except as provided in subsection (b) of this section, a circuit court shall not grant a mutual order of protection to opposing parties. 
(b) Separate orders of protection restraining each opposing party may only be granted in cases where each party: 
(1) Has properly filed and served a petition for a protection order; 
(2) Has committed domestic abuse as defined in § 9-15-103; 
(3) Poses a risk of violence to the other; and 
(4) Has otherwise satisfied all prerequisites for the type of order and remedies sought. 
[*Note – more information on mutual orders of protection here.] 

 

9-15-301. Repealed.

 

9-15-302. Full faith and credit. 

(a) Any order of protection that meets the requirements of subsections (b) or (c) of this section issued by a court of another state, a federally recognized Indian tribe, or a territory shall be afforded full faith and credit by the courts of this state and shall be enforced by law enforcement as if it were issued in this state. 
(b) An order of protection issued by a court of another state, a federally recognized Indian tribe, or a territory meets the requirements of this section if: 
(1) The court had jurisdiction over the parties and matters under the laws of the other state, the federally recognized Indian tribe, or the territory; and 

(2) 
(A) Reasonable notice and opportunity to be heard was given to the person against whom the order was sought sufficient to protect that person's right to due process. 
  
(B) In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by the laws or rules of the other state, the federally recognized Indian tribe, or the territory and, in any event, within a reasonable time after the order is issued sufficient to protect the due process rights of the party against whom the order is enforced. 
  
(c) An order of protection issued against both the petitioner and the respondent by a court of another state, a federally recognized Indian tribe, or a territory shall not be enforceable against the petitioner unless: 
  
(1) The respondent filed a cross or counter petition, complaint, or other written pleading seeking an order of protection; 
  
(2) The issuing court made specific findings against both the petitioner and the respondent; and 
  
(3) The issuing court determined that each party was entitled to an order. 
  
(d) 
(1) A person seeking recognition and enforcement of an out-of-state order of protection under this section may present a copy of the order of protection to the local law enforcement office in the city or county where enforcement of the order may be necessary. 
  
(2) After receiving a copy of the order of protection, the local law enforcement office shall enter the order into the Arkansas Crime Information Center protection order registry file. 
  
(3) There shall be no fee for entering the out-of-state order of protection. 
  
(4) The law enforcement office shall not notify the party against whom the order has been issued that an out-of-state order of protection has been entered in this state. 
  
(5) Entry of the out-of-state order of protection into the center's protection order registry file shall not be required for enforcement of the order of protection in this state. 
  
(e) 
(1) 
(A) When enforcing an out-of-state order of protection, a law enforcement officer shall determine if there is probable cause to believe that an out-of-state order of protection exists. 
  
(B) A law enforcement officer may rely upon: 
(i) An out-of-state order of protection that has been provided to the officer by any source; or 
(ii) 
(a) The statement of any person protected by an out-of-state order of protection that the order exists; and 
(b) Verification by the clerk of the court of the other state, the federally recognized Indian tribe, or the territory in writing, by telephone, or by facsimile transmission or other electronic transmission. 
(2) 
(A) When enforcing an out-of-state order of protection, a law enforcement officer shall determine if there is probable cause to believe that the terms of the order have been violated. 
  
(B) The law enforcement officer may rely upon: 
(i) Any events he or she witnessed; 
(ii) The statement of any person who claims to be a witness; or 
(iii) Any other evidence. 
  
(3) A law enforcement officer shall not refuse to enforce the terms of the order of protection on the grounds that the order has not been filed with the local law enforcement office or entered into the center's protection order registry file unless the law enforcement officer has a reasonable belief that the order is not authentic on its face. 

 

 

9-15-303. Immunity from liability.

Law enforcement officers and law enforcement agencies shall be immune from civil or criminal liability if acting in good faith in an effort to comply with this subchapter.

 

9-15-401. Title.

This subchapter shall be known and may be cited as the "Spousal Abuse Safety Plan Act".
9-15-402. Findings - Purpose.
(a) The General Assembly finds that:
(1) There are many resources to support victims of domestic abuse after the abuse has occurred. However, the issues of how to prevent spousal abuse and the possible solution of creating a safety plan for the spouse and the children in the household have received very little attention;
(2) Exposure to domestic abuse and spousal abuse has a devastating 1 impact on both the children and adults in households and communities, regardless of whether they are direct victims of abuse or witnesses to it; and
(3) Children exposed to such violence at an early age are likely to become either perpetrators of abuse or victims of violence in adulthood, which is a cycle that can only be stopped through intervention and education.
(b) The purpose of this subchapter is to reduce the occurrence of spousal abuse and to reduce the exposure of children to spousal abuse by creating a safety plan for the spouse that is a victim of the spousal abuse and for the children in the household.

 

9-15-403. Definitions.

As used in this subchapter:
(1) "Emotional abuse" means any of the following acts:
(A) Verbally attacking or threatening a spouse by yelling, screaming, or name-calling;
(B) Using criticism, social isolation, intimidation, or exploitation to dominate a spouse;
(C) Criminally harassing a spouse;
(D) Stalking a spouse;
(E) Threatening a spouse or his or her loved ones;
(F) Damaging a spouse's possessions; or
(G) Harming the pet of a spouse;

(2)(A) "Physical abuse" means any of the following acts:
(i) Using physical force in a way that injures a spouse or puts him or her at risk of being injured;(ii) Beating, hitting, shaking, pushing, choking, biting, burning, kicking, or assaulting a spouse with a weapon.
(B) "Physical abuse" may consist of one (1) or more than one (1) incident described under subdivision (2)(A) of this section;

(3)(A) "Sexual abuse" means any of the following acts:
(i) Forcing a spouse to participate in unwanted, unsafe, or degrading sexual activity; or (ii) Using ridicule or other tactics to try to denigrate, control, or limit a spouse's sexuality or reproductive choices.
(B) "Sexual abuse" includes rape, sexual assault, or sexual harassment;

(4)(A) "Spousal abuse" means an act of violence or mistreatment that a woman or a man may experience at the hands of his or her marital partner, regardless of the timing of the act in terms of the stage of the relationship.
(B) "Spousal abuse" includes any of the following committed by a spouse against his or her spouse:
(i) Emotional abuse;
(ii) Physical abuse; or
(iii) Sexual abuse.

 

9-15-404. Safety plans and education.

The purpose of the Spousal Abuse Safety Plan Act is to:
(1) Develop increased and improved security measures that provide greater protection for victims of spousal abuse, especially those who have orders of protection;

(2) Help victims create a safety plan to keep them and their children as safe as possible by developing publications as described under § 9-15-405 on what to do and where to go if danger occurs;

(3) Make safety plan publications as described under § 9-15-405 available in public health centers and for distribution to victims by police officers when responding to spousal abuse calls;

(3) Create special training initiatives regarding the dynamics of spousal abuse for police intake officers, health officials, and social workers in order to help ensure a continuously improving response to spousal abuse;

(4) Encourage the development of community-based, civic-based, and faith-based healthy relationship courses to teach to both adolescent boys and adolescent girls as they begin to date:
(A) The elements of healthy relationships;
(B) Acceptable and unacceptable behavior in relationships;
(C) The concept of respect;
(D) Conflict resolution techniques;
(E) Anti-violence; and
(F) The prevention of sexual assault and sexual harassment;

(5) Help raise awareness about the devastating impact that spousal abuse has on children and families; and

(6) Assist with the development of increased protection of victims of spousal abuse by establishing standards for protection and response by convening a committee of relevant experts in the field of health care and law enforcement to recommend standards to the General Assembly.

 

9-15-405. Educational and training materials.

(a) The Arkansas Child Abuse/Rape/Domestic Violence Commission, in consultation with experts on spousal abuse prevention and intervention, shall develop educational material and training material to address the issues under this subchapter.
(b) The educational material and training material shall be published and distributed around the state.

 

9-15-406. Rules.

(a) The Arkansas Child Abuse/Rape/Domestic Violence Commission, shall promulgate rules to implement and administer this subchapter.

 

9-15-407. Reporting.

(a) The Arkansas Child Abuse/Rape/Domestic Violence Commission shall report annually to the House Committee on Aging, Children and Youth, Legislative and Military Affairs and the Senate Committee on Children and Youth regarding:

(1) The status of the implementation and administration of this subchapter and its purposes; and
(2) Any recommended changes in the law to improve the prevention of or intervention into spousal abuse situations.