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Obtaining or Defending Against a Protective Order

The Indiana Civil Protective Order Act (“Act”) provides powerful relief to help ensure the safety of certain covered Hoosiers who find themselves in dangerous situations, such as a victim of domestic violence. Additionally, the Act covers certain minor children in harmful situations or individuals, such as from an abusive or drug-addicted parent. While protective orders issued under the Act are unique and powerful tools in that they can be granted ex parte,1 they may be abused in cases by a petitioner’s false allegations and issued against a person who is not a threat to anyone. This blog explores the purposes of protective orders, who they may cover and what they do, and what you can do if you find yourself on the wrong end of an order of protection.

Protective Orders, also referred to as Orders for Protection, have two main objectives. First, Protective Orders promote the protection and safety of all victims of domestic or family violence.2 Second, Protective Orders are used to promote the prevention of future violence.3  So, in essence, a protective order mandate any illicit activity stop; and then it is put on an electronic registry (computer database) to assist law enforcement in keeping future cover activities, such as violence and stalking, from occurring.  By the statistics, protective orders are meeting these goals (and sometimes improper ones); in Indiana alone last year, over 53,000 Protective Orders were submitted to the protection order registry.4  Protective Orders which were subsequently granted can be found on the Indiana Protective Order Registry.5  So, do find yourself in a situation where you need to stop domestic violence, stalking, or a sex crime and prevent it in the future? If so, a relief under the Act may be right for you.

Under the Act,6 there are two basic categories of people that may apply for a Protective Order. The first group is persons who are, or have been, victims of domestic or family violence. The victim can apply for a Protective Order against an aggressor who is a family member or is in the same household as the victim. Protective Orders may also be sought by victims against individuals who have either committed stalking or a sex offense against the victim.  The second class of people who may seek Protective Orders are minor children. As it may be apparent, a minor child is not able to seek a Protective Order on his/her own. Instead, a parent, guardian, or representative may file for a Protective Order on the minor child’s behalf. A Protective Order also may be requested on behalf of a minor child against a family or household member that commits an act of domestic or family violence. Equally, a Protective Order can be sought against any individual who commits stalking or a sex offense against the minor child. Thus, it should be apparent that the Act is somewhat limited in scope to certain situations and groups of people. Are you in this situation and covered by relief under the Act?  These limits are somewhat technical, and your counsel may direct you to other relief under Indiana law if the Act does not apply.

While protective orders do a lot of good for victims, there are situations in which they are used for illicit or tactical reasons. The very design of the Act makes protective orders easy to obtain and without the other side being heard (an anomaly in American law). The reason the law differs in this area is the public awareness of domestic violence and a victim of violence or abuse does not necessarily have a lot of time to sit around and wait for a court to set a hearing, hear evidence of the victim and alleged abuser, and then decide if a protective order should issue. Thus, because of the public demand to address this issue in real time (when it is occurring) the Act allows delay of the due process right of notice and opportunity to be heard and a court to issue a protective order based on just hearing from an alleged victim.  As such, an individual can obtain a Protective Order on “evidence” submitted to the Court without comporting with the rules of evidence.   What does this mean?

This lower standard to seek a protective order leads to some individuals finding themselves on the wrong end of an order of protection based on a victim’s false or distorted representations to a court.  Some situations where a misguided protective order petition is requested a sometimes may be granted based on such “evidence” include the heartbroken ex-boyfriend or girlfriend or the angry ex-spouse who wants to punish the other by keeping the child away via protective order. In situations like these, however, the Court tends to defer to the side applying for a protective order in recognition of the problem of domestic violence and to the Legislature who passed this into law rather than risk future abuse or violence. As such, while the protective order may later get dropped due to lack of proof or denied after a hearing.  Make no mistake, that if you are in this situation, having a protective order stand against you and not trying (defending against) the case has profound implications.  An employer may not hire you and you are Brady disqualified and unable to possess firearms.  In these cases, the person who is subject to the protective order obtained on distorted or false information should always have counsel try their case to attempt to have the protective order dismissed (a person is not Brady disqualified until they have been heard or waived the right).

Ultimately, the right to seek a protective order is limited to a narrow group of people and tied to very specific acts that are of social significance.  Protective Orders are unique and very complex, but where granted, have significant implications. A skilled attorney can help you to navigate these murky waters if you seek a protective order or need to defend against a protective order issued against you. Ciyou & Dixon, P.C. attorneys handle all facets of protective orders and practice throughout the State of Indiana. This blog post is written by Ciyou & Dixon, P.C. advocates.  This blog is not intended as specific legal advice or a solicitation for services. It is an advertisement.

  1. The other side does not know or heard before issuance.
  2. Ind. Code 34-26-5-1(1)
  3. Ind. Code 34-26-5-1(2)
  6. Ind. Code 34-26-5 et. al.

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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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Based in Indianapolis and founded in 1995, Dixon & Moseley, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Dixon & Moseley, P.C. will guide you every step of the way. The family law attorneys at Dixon & Moseley, P.C. will help you precisely identify your objectives and the means to reach your desired result. Life is uncertain. Be certain of your counsel. Indianapolis Divorce Attorneys, Dixon & Moseley, P.C.

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