Domestic Violence is a real and prevalent issue in today’s society. Husbands, wives, children, girlfriends, boyfriends, and even extended family members can be a victim of domestic violence or perpetuate violence. Oftentimes, domestic violence can lead to divorce. When one partner is in imminent fear of harm by the other, despite getting a divorce, sometimes the victim needs the added security of a protective order to help keep their attacker at a safe distance.
But what happens when protective orders are misused and misapplied?
The Indiana Civil Protection Order Act (ICPOA) is the controlling law1. The ICPOA promotes the protection and safety of victims of domestic violence, in a fair and prompt manner2. 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, so long as a hearing follows within thirty (30) days3.
When a court reviews a petition and grants a protective order, without notice to the alleged attacker by a hearing, certain constitutional rights could be violated. The courts will 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).
In the last decade, the issuance of Protective Orders in Indiana has increased from 24,400, to 34,500, which is almost a 30% increase4.
While it is fair to say that emotions are charged during a divorce, or in the months or weeks leading up to the filing for divorce, sometimes Protective Orders are coupled with divorce proceedings, fairly and unfairly and can be used as illicit tactical tools to exclude a party from the marital residence or indirectly obtain custody of the children. Since domestic violence is a real problem, many protective orders are issued as a result.
However, what if a protective order is issued against you, unfairly? What if a spouse uses a protective order to gain a strategic advantage in a divorce or custody proceeding?
Defending against a wrongfully issued protective order can be costly, time consuming, and interfere with your life in the meantime. However, if a protective order is wrongly issued against you, it may be imperative to your future to defend yourself. There are few options: If a protective order is issued ex parte, or without a hearing, a hearing shall be held within thirty (30) days, and you must present all evidence to dispute the allegations in the petition. If on the other hand, a protective order is upheld, or granted following a hearing, you may petition the court to correct error. And finally, you may appeal.
On appeal, the Court of Appeals will not reweigh the evidence presented to the trial court5. The Court of Appeals will consider the sufficiency of the evidence on appeal. However, because the ICPOA is a relatively new body of law and the numbers of protective orders issued and registered seem to be disproportionate to the adult population, given they carry potentially serious consequences, the Court of Appeals has taken a careful approach in not extending the reach of the ICPOA orders and fairly narrowly construing this body of law.
Dixon & Moseley, P.C. practices law in domestic suites, and civil appeals, throughout the state of Indiana. This blog post was written by Bryan Ciyou, Esq. and attorney Lori Schmeltzer.
