Order for Protection & Its Defense 5

In: Minnesota

by Minnesota Family Law Attorney, Maury D. Beaulier

An Order for Protection (OFP) is a restraining Order that is sought where abuse or threats of abuse are alleged. Often, such proceedings are improperly used as a vehicle when divorce is contemplated to have a spouse removed from the family home and/or to seek advantage in a subsequent custody proceeding.  OFP’s may be effective for up to two years and also place a Respondent at risk since any alleged violation of the OFP’s provisions can result in criminal charges for a violation of a restraining Order. Only the Respondent is limited by the OFP, whereas, the Petitioner is not. In other words, if an Order for Protection limits contact between the parties, only the Respondent is limited and is required to hang up the phone or leave the area if the Petitioner is present or even if the Petitioner seeks to make contact.

In addition to possible criminal ramifications for a violation, the impact and effect of an Order for Protection should not be underestimated with regard to other proceedings. The Minnesota custody statute 518.17 includes a rebutable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents. That provision is often interpreted by courts as meaning that the person who is found to have committed an act of abuse, should not be granted custody. Similarly, the Domestic Abuse Statute also states in Subd. 17 that a finding of domestic abuse may impact a custody proceeding stating – “in a subsequent custody proceeding the court must consider a finding in a proceeding under this chapter or under a similar law of another state that domestic abuse has occurred between the parties.” In other words, you cannot later contest that domestic abuse has occurred if the Court makes such a finding as part of an Order for Protection proceeding. This is significant because, an Order for Protection contested hearing must occur very quickly (usually within 7 to 14 days). This provides little time to contact potential witnesses or to prepare a defense. Moreover, the Courts time to hear such matters is often limited and, all too often, Judges will limit the time allowed for the hearing or the limit the testimony given by witnesses. Such proceedings stand in stark contrast to divorce and custody proceedings where, often, experts are employed to investigate the facts in the form of custody evaluators, Guardian Ad Litems or psychologists.  Investigations in custody and divorce cases may span months where in an Order for Protection, a dispositive hearing occurs within weeks. Clearly, professional, experienced and aggressive preparation for an Order for Protection proceeding is necessary.

The stakes are high when an Order for Protection is sought. Any defense against an Order for Protection begins with the definition of “abuse” under the statute.  “Domestic abuse” is physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members. Minn.Stat. § 518B.01, subd. 2(a) (1992).  “[I]nfliction of fear” in the statute implies that the legislature intended that there be some overt action to indicate that appellant intended to put respondent in fear of imminent physical harm. Kass v. Kass, 355 N.W.2d 335, 337 (Minn.App.1984) (emphasis in original). An oral threat, depending on the words and the circumstances, can also demonstrate “infliction of fear of imminent physical harm.” Hall v. Hall, 408 N.W.2d 626, 628-29 (Minn.App.1987), pet. for rev. denied (Minn. Aug. 19, 1987).  An Order for Protection also requires more than a showing of past abuse. The petitioner must also show “present intention to do harm or inflict fear of harm.” Andrasko v. Andrasko, 443 N.W.2d 228, 230 (Minn.App.1989) (citing Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn.App.1986)).

It can be argued that a petition is deficient on its face if it includes no allegations of conduct that arise to the level indicated by the statute. Being “deficient on its face” means the action can be dismissed without further hearing. If there is a possibility that the allegations rise to the level of abuse in the statute, an evidentiary hearing or trial before a Judge is held. In that proceeding, any allegations of abuse are refuted. Often, seeking to expose an ulterior motive for the allegations (eg. Seeking advantage in custody proceedings or divorce) become part of the defense. In that defense, the timing of the allegations often comes under fire. Did the parties discuss divorce before the Order for Protection was filed? Did they argue about who would live in the house or who would have custody? Were any preparations made for divorce before the filing?

It is also important to seek a limitation on the evidence presented including limiting testimony on older alleged incidents of abuse and challenging any documentary evidence.

Allegations of abuse that are old have limited value and can often be excluded. The case law in Minnesota has been consistent that past allegations of abuse may be insufficient to show that there is any present intent to inflict imminent physical harm. In the case of Kass v, Kass, 355 N.W.2d 335 (Minn. Ap. 1984), the Court of Appeals reversed an Order for Protection where the last incident of abuse occurred four years prior. Similarly, in Bjergum v. Bjergum, 392 N.W.2d 604 (Minn.App. 1986) the court concluded that allegations of abuse two years old were too remote to show a present intent to inflict imminent physical harm or to create a reasonable fear of that harm.  If no contemporary incidents are alleged, the Order for Protection may be dismissed.

Documentary evidence such as police reports, emails and other communications can also be challenged as lacking proper foundation and including only partial communications that present the communications out of context. Carefully crafting such objections in advance is often critical to the outcome of the case.

Where there is significant risk that a court will find that domestic abuse has occurred, it is often a well reasoned strategy to agree to the entry of restraining provisions without any findings that abuse occurred. Though such orders still can be detrimental in a custody or divorce proceeding and may still be enforced through criminal charges for violations, they do not carry the presumptive impact of an Order with findings in a custody proceeding. In some case, even more favorable resolutions may be negotiated, such as agreeing to an entry of an interim order in a divorce case while dismissing the Order for Protection altogether. The viability of such resolutions may depend on the strength of your arguments and defenses. As a result, you should always consult with experienced legal counsel as soon as possible in such matters.

Maury D. Beaulier (http://www.divorceprofessionals.com/) is an attorney located in Minnesota who is highly regarding in cases of divorce and child custody. He has been described by clients as aggressive and affordable.

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