DOMESTIC VIOLENCE

A “Protection Order”, sometimes referred to as a “Restraining Order”, is a court order issued under the Protection from Abuse Act (PFA) which provides limited protection for people who have been physically abused. It can be sought against a victim’s spouse, former spouse, common-law or former common-law spouse, person with whom the victim has or had a dating relationship, person with whom the victim has a child, or a present or former household member. A dating relationship means a recent, frequent, intimate association, primarily characterized by the expectation of affectionate or sexual involvement within the last 6 months. A dating relationship does not include a casual or business relationship. A household member is defined as a person maintaining or having maintained a living arrangement with the defendant where he or she is in, or was engaged in, a romantic or sexual relationship.

Generally, Protection Orders may be issued only if there have been one or more recent acts of abuse or threatened abuse. A judge may dismiss your petition if you claim that the abuse or threat occurred many months ago, or if you only think that something might happen in the future.

A Protection order may be sought by the victim, if 19 years of age or older, or by a legally responsible person on behalf of a minor or incapacitated adult. While it is not necessary to have the assistance of an attorney, obtaining a Protection Order can have significant legal consequences, especially involving issues such as custody of children and property division. It is recommended that the plaintiff seek legal counsel to assist in this matter.

The victim’s home or work address, phone number, or other related information is kept confidential.

Persons covered by a Protection Order include the victim, minor children of the victim, and designated household or family members.

If the victim lives in Alabama, even if he or she has just moved here, he or she can petition the court for a Protection Order. A Protection Order is effective throughout the state as well as other states. Also, any Protection Order issued by the court of another state shall be enforced as if it were an order of this state.

After the Petition is filed, the Judge must decide whether to issue a temporary Protection Order, also known as an Ex Parte Order, based on the Petition. This temporary Protection Order may be issued by the Judge without notice to the defendant. The courts must have a valid address for the defendant, in order for the defendant to be served with the temporary Protection Order and hearing date. If the temporary Protection Order is issued, it may include some or all of the following:

• Restrain the defendant from committing or threatening to commit acts of abuse, or from harassing annoying, telephoning, contacting, or otherwise communicating directly or indirectly with the victim, victim’s minor children, or any other designated person.
• Order the defendant to stay away from the victim’s residence or place of work, school or day care or any other specific place frequented by the victim or victim’s minor children or by any other designated person.
• Award the victim temporary custody of any minor children and restrain the abuser from removing the children from the victim’s custody. The order may be used to require law enforcement to accompany the victim to get the children to protect the victim or the children from harm.
• Remove the defendant from the residence, regardless of ownership of the residence.
• Prohibit the defendant from selling, disposing, destroying, hiding, or mortgaging mutually owned or leased real estate or personal property.
• Order other relief as necessary to provide for the safety and protection of the victim, victim’s minor children and other designated persons.

Final Protection Orders

After a Petition for Protection Order is filed and Ex Parte Order (temporary Protection Order) is issued, a hearing will be held at which the plaintiff will need to prove, through testimony and evidence that the abuse occurred. The defendant is allowed to be present and offer evidence against the allegations in the petition. The defendant may be represented by an attorney. After the hearing, the Judge must decide whether to issue a Final Protection Order. If a Final Protection Order is issued, it may contain any or all of the provisions in the Ex Parte Order. The Final Protection Order will also indicate how long the order is in effect for. This can range from 60 days or could be an indefinite order. The Final Protection Order may also include:

• Order specific child visitation for the defendant, which may include supervised visitation in the presence of a third party or withholding visitation completely.
• Order the defendant to pay the plaintiff’s attorney’s fees and court costs.
• Order the defendant to pay child support for the children
• Order the defendant to provide temporary support for the victim and grant the victim possession (not ownership) of the residence or household.
• Order the defendant to provide the victim temporary use of a vehicle, if the victim has no other means of transportation and the defendant has control of more than one vehicle or alternate means of transportation.

WHILE THE ABOVE RELIEF IS AVAILABLE, THE COURT IS NOT REQUIRED TO ORDER ALL RELIEF IN EACH CASE. WHETHER THE JUDGE ENTERS AN ORDER, AND WHAT IS INCLUDED IN THE ORDER, WILL DEPEND UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE. EVEN WITH A PROTECTION ORDER, THE VICTIM MAY STILL NEED TO FIND A SAFE PLACE TO LIVE. IF THE DEFENDANT VIOLATES THE TERMS OF THE PROTECTION ORDER, THE DEFENDANT MAY BE ARRESTED AND BROUGHT TO COURT.

Protection Orders may be obtained in the Family Court Division of the Circuit Court which is located in the Madison County Courthouse, Room 217 (Magistrate’s Office). The plaintiff must ask the court for a Protection Order either in the county where the victim lives or in the county where the victim has temporarily relocated to avoid further abuse. If there is a pending case, then the plaintiff must file for protection in the county in which the case is pending. It is recommended that the plaintiff file in the county in which the victim resides, if possible.

Standard court forms (Petitions) must be filed with the clerk to ask for a Protection Order. These forms are available in the clerk’s office in each county courthouse or by using this link. The completed Petition should be taken to the clerk’s office. The Judge may or may not issue a temporary Protection Order and set a date for a hearing before the plaintiff leaves the courthouse. If any temporary orders are signed by the Judge, they are good only until the final hearing unless otherwise extended by the Judge. They are not permanent orders!

After the Judge signs a temporary Protection Order, a date is set for a court hearing. The clerk’s office will give a copy of the signed temporary order, petition, and notice of the hearing date to the Sheriff’s department. The Sheriff’s department will attempt to serve copies of these papers on the defendant. The plaintiff should ensure that the sheriff has the correct, physical address of the defendant’s home and/or work. Other helpful information for the Sheriff’s department could include a physical description, vehicle description, tag number, etc. It is necessary that the defendant be served with the court order before the court date. If not, the hearing may be postponed because the Judge cannot take testimony from the plaintiff or a witness until the defendant is officially served.

The plaintiff/victim must appear for the hearing. Failure to appear may result in your petition being dismissed, being responsible for payment of court costs or loss of child custody.

The defendant may appear and be represented by an attorney. If the plaintiff does not have an attorney, the plaintiff should be prepared to proceed without one. Attorneys are not appointed in Protection from Abuse cases.

Violations of a Protection Order may be punished as contempt of court and may be charged as a Class A misdemeanor for which the defendant/offender may be arrested with or without a warrant. A Class A misdemeanor is punishable by up to a year in jail, and a fine up to $2,000.00.

While the plaintiff is not required to have the assistance of an attorney, obtaining a Protection Order can have significant legal consequences, especially involving issues such as custody of children and property division. The Alabama State Bar Referral Service is available at 1-800-392-5660. This service can provide names and phone numbers of attorneys who practice in the area of domestic relations. If the plaintiff cannot afford an attorney, the nearest Legal Services Office may be contacted. The phone number for the Madison County Volunteer Lawyers Program is 256-539-2275.

Although a Protection Order can be an important tool in helping the police and the courts discourage domestic violence, it is a judicial order and not a shield which will stop bullets, knives or fists. Often when a defendant first gets a Protection Order served on him/her, they may seek to increase the pressure, threats and violence. It may be necessary for the victim to seek shelter or safe place or call the police. A local domestic violence shelter is available to offer assistance in developing a safety plan and in planning to leave a violent relationship. Crisis Services of North Alabama offers assistance through Hope Place. A phone call to the 24-hour crisis line number is listed below can make a difference and will connect you to the shelter program in their area. For immediate assistance, please call 256-716-1000.