Protective Orders, or POs, are a tool to protect a victim against a harasser or stalker. POs are in the nature of injunctive relief. Essentially, it is a court order prohibiting certain behavior of the harasser or stalker, towards the victim. A PO is NOT a No Contact Order. Popular portrayal in movies and TV shows often indicate that a Protective Order requires someone to stay at least so many feet or yards away from the victim. However, in Indiana, this is not true. Protective Orders can be tailored to the facts and circumstances of the parties involved, but generally, a PO prohibits further contact that is harassing, threatening, or stalking in nature.
The Indiana Civil Protection Order Act (ICPOA) is the controlling law.1 The ICPOA promotes the protection and safety of victims of domestic violence, in a fair and prompt manner.2 A person who is a victim of domestic violence may file a petition with their local court. The victim must state the instance or instances of violence committed by their alleged attacker. If the instances of violence are egregious enough, a court may review the petition and make a decision without a hearing or notice to the alleged attacker, in other words, ex parte, with a hearing following within thirty (30) days.3
When a court reviews a petition and grants a protective order, without notice to the alleged attacker, or a hearing, certain constitutional rights could be violated. While the courts generally view that protecting a victim of domestic violence, outweighs the attacker’s rights, at least temporarily. The alleged attacker could be excluded or ousted from his or her own home (even if ownership is solely in the name of alleged attacker, and not at all in the name of the victim), be ordered to stay away from the victim’s place of employment (which could cause problems if the victim and alleged attacker work together), and / or restrict use of a vehicle (in cases of married persons). Additionally, Protective Orders are quasi (or semi) criminal. This is because, after a hearing, someone who has a Protective Order issued against them is deprived of possession of guns during the time the PO is in place.
In the last decade, the issuance of Protective Orders in Indiana has increased from 24,400, to 34,500, in other words, an almost 30% increase.4
The facts and circumstances surrounding the issuance of a PO, and what constitutes domestic violence, stalking under the ICPOA are dispositive in determining if a PO should be issued. Domestic, or family violence, is defined as “the occurrence or at least one (1) of the following acts committed by a family or household member: (1) Attempting to cause, threatening to cause, or causing physical harm to another family or household member [or] (2) Placing a family or household member in fear of physical harm.”5
In a recently decided Indiana Court of Appeals case, Hanauer v. Hanauer, the Court of Appeals affirmed the trial court’s issuance of a PO against Husband, for acts of domestic violence and stalking against Wife.6 The Court of Appeals reviews trial court decisions regarding POs on a sufficiency of the evidence standard of review. In other words, was there sufficient evidence presented to the trial court, such that the trial court could have ruled the way it did?
In Hanauer, over a period of four (4) days, Husband screamed at Wife to get out of the house and get a job; Husband stood over Wife while she was sitting on the couch, with clenched fists while screaming; Husband entered the spare bedroom where Wife was sleeping repeatedly and turned the lights off and on, banged on the computer, and slammed the door; and, Wife awoke one morning to find the tires on her car slashed. The trial court made findings that these actions occurred, and constituted domestic violence under the law, sufficiently to justify the issuance of a PO. The trial court did carve out an exception, that Husband and Wife could have contact, solely to coordinate parenting time exchanges (thus, a PO is not a No Contact Order, nor does it prohibit physical contact entirely).
Husband appealed, arguing that there was insufficient evidence to support the issuance of a PO. Notably, Husband did not argue that the trial court’s findings that the incidents occurred were erroneous, only that the incidents did not amount to domestic violence. The Court of Appeals agreed with the trial court, that the incidents did amount to domestic violence, and the PO was upheld.
Dixon & Moseley, P.C. practices law in domestic suits, and civil appeals, throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.
