Indiana Restraining Orders
Indiana Restraining Orders
In a divorce filing or afterward, an Indiana restraining order may be issued by a trial court to protect anything consistent with the Dissolution Act’s direction to Indiana trial courts to divide the marital estate in a just and reasonable manner and act in the children’s best interests. About the only limit on protective orders or restraining orders is that a trial court cannot order a party not to speak about the case and be critical of the court (not that any party should do this) because to do so is considered an unconstitutional prior restraint of free speech. (In Re Paternity of K.D., T.N. v. B.D. 929 N.E.2d. 863, 2010).
Perhaps the most common type of restraining order is one issued against a party to keep him or her from dissipating or wasting marital assets. This is the type of restraining order Indiana courts use to keep a party from hiding funds or blowing them on wasteful things, such as gambling. However, an Indiana restraining order, which prohibits dissipation of the marital assets, does not keep the parties from spending funds in the ordinary way they did during the marriage. Further, once a trial court has issued an order, it has wide discretion to craft other restraining-type orders to ensure its property, custody and parenting time orders work as ordered. The authority for these orders comes from statutes, trial rules and the inherent authority bestowed on trial courts by election or appointment to the bench by power vested in judges and courts by the Indiana Constitution.
The second type of order comes from the Indiana Civil Order Protective Act (known by the acronym “ICOPA”). These are focused on domestic types of cases and are generally limited to persons in a domestic relationship. Protective orders may be issued ex parte, or permanently (two years) after a hearing where evidence is presented. For an individual to be found in violation of an Indiana restraining order, they must have received proper legal service in Indiana. Since protective orders are issued in domestic cases, where emotions tend to run high, the judge has the ability to, after a hearing, to Brady disqualify the party against whom the order is issued. (Evans v. Thomas, 2012). Brady disqualification is issued based on the relationship of the parties and the factual basis of the allegation.
Brady disqualification means that under state or federal law, a person may not possess firearms or ammunition. Therefore, in cases where a party is a police officer, member of the military, or otherwise in need to carry, possess, or be around firearms, he or she will not be able to perform this function. Brady disqualification may impair his or her ability to earn a living and pay child support. This Indiana restraining order is part of a uniform body of law available in all states and has a national repository so it is available to law enforcement officers across the United States
The policy behind an IOCPA order, that Indiana courts or courts of states may issues, is to address domestic violence as there is a national focus on this issue, much like the focus on keeping drunk drivers off the road by additional police enforcement and media attention. Because of the consequences of having an ICPOA order issued you where you believe you can present trial evidence otherwise to show it is not supported or warranted, you should carefully consider its challenge through counsel.
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