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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Orders for Protection: When the Shield Becomes a Sword

Minnesota’s Domestic Abuse Act includes a powerful tool for courts to employ to protect victims of domestic abuse, but few safeguards exist to prevent one party in a family dispute from using it as a weapon to gain advantage over the other.

We’ve all heard the horror stories on the news and seen them in the paper. A woman and her boyfriend forced to kill her ex-boyfriend when he entered their home and bedroom in the dark of night. A woman killed by her ex-husband while her children ran and hid. A friend staying at the house to give her a feeling of comfort and security also killed. No one disputes that men, women and children have the right to be free of abuse. No one argues that it is okay to abuse your spouse or mate or household member. We need a tool to prevent such horrors, if possible, and certainly to help when these situations arise. One such tool is the domestic abuse order for protection.

An order for protection is a powerful tool, which it should be. But just like any tool, it can be misused or abused. Consider the plight of the person against whom the tool is being used. The process can be confusing and there is a lot at stake. You can be taken away from your home, your family, your personal belongings, everything—all on the words of another. What if the accusation is false, but the order for protection is granted? Is it better to issue an order against an innocent person rather than risk not granting one against an abusive person? Can we prevent misuse of this tool or is that too much of a risk when someone can be seriously hurt or, worse, killed?

Minn. Stat. §518B.01, the Domestic Abuse Act, is one of the most powerful tools on the books in the state of Minnesota when used to obtain an ex parte order for protection. If an ex parte order is granted because the petitioner successfully alleges an immediate and present danger of domestic abuse, a man or woman can be deprived of their home as well as any and all contact with their significant other, spouse and/or children, all based initially upon the unilateral, unsubstantiated allegations of one party.1 Granted, the accused is ultimately given the right to request a hearing to contest those allegations if they so choose or the court orders it,2 but nowhere else are we allowed to say someone is guilty until proven innocent.

Please don’t misunderstand. We are not in favor of abuse, nor mean to suggest that we support people who physically or mentally abuse their friends, family or children. Our point is to express concern about those caught in the very broad net of the Domestic Abuse Act. Those of us who practice extensively in family law know that abuse of the act does happen.

The Domestic Abuse Act

The Domestic Abuse Act provides that a petition may be brought by “any family or household member” either personally or on behalf of a member of the family or household who is a minor.3 The petition need only allege the existence of domestic abuse, based upon the affidavit of the party seeking the order.4 Domestic abuse, if committed against a family or household member by another family or household member, means the following:

(1) physical harm, bodily injury, or assault;
(2) the infliction of fear of imminent physical harm, bodily injury, or assault; or
(3) terroristic threats … ; criminal sexual conduct … ; or interference with an emergency call … .5

Here is where it gets confusing. In an ex parte case, at minimum, a petitioner can ask the court to:

(1) restrain the other person from abusive conduct and actions;
(2) exclude the other person from the shared dwelling or residence;
(3) exclude the other person from the petitioner’s place of employment; and
(4) order that existing insurance coverage remain in place.6

If the petitioner’s request is limited to these four elements, a hearing does not have to be held unless the respondent requests it. If the petitioner asks for something beyond the scope of these four points, such as asking for custody, child support, parenting time, maintenance and the like, then a hearing is supposed to be scheduled automatically within seven days of the original petition. In reality, however, the enforcement of the right to a hearing varies. In one county court, even though the petitioner sought custody, the order issued did not set a hearing date, which resulted in requiring the respondent to request one.

If a hearing is scheduled, the respondent is faced with more choices—choices, and the ramifications of which, the respondent may not understand. The respondent may choose to:

(1) Admit the allegations and let the order be entered;
(2) Deny the allegations, but agree to allow the order to be entered. (In this event, the court grants the order for protection, but does not make specific findings regarding the allegations made by the petitioner); or
(3) Deny the allegations and request an evidentiary hearing.

What happens next varies widely. Some judicial officers hold the evidentiary hearing on the spot. Others finish the court calendar and hold the evidentiary hearing at the end of all other cases, if there is still time at the end of the day. Still others automatically schedule it for another date and time. Respondents, especially those appearing pro se, don’t know which course the court will take, so they either come prepared with witnesses that cannot be used or unprepared without their witnesses present. Unsuspecting pro se respondents can often find themselves in the middle of a minitrial, unprepared andun- or under-educated in how to represent themselves. If the court is sympathetic, the hearing can be continued to a different day to get things organized and get counsel, but the ex parte order remains in place until the case can be placed back on the court calendar. The individual respondent continues to be denied clothing and other personal items in the home, except under police escort; kept out of the home; and completely cut off from family and children until the next hearing date.

Assuming all of the allegations made are true, there is not much sympathy for the respondent. Keeping an abusive person away is paramount to the safety of those bringing the petition. The conundrum lies in whether the accused is a guilty person and a threat or an innocent person being falsely accused and inappropriately restrained so that the accuser may gain advantage in another legal or personal matter.

The Judicial Officer’s Dilemma

Unfortunately, the temptation to misuse the Domestic Abuse Act can be enticing. If a divorce or fight over paternity, parenting time, or custody is on the horizon or already underway, saying that one party is abusive is a powerful allegation. Not surprisingly, parents accused of such behavior frequently lose in their other court battles over their children or their property. Again, if the allegations are true, the abusive person should be kept away, but the law itself is ripe for abuse when it can be manipulated as a weapon by someone seeking to take advantage in such a situation. Who wants to be the judicial officer who denied the order for protection when that respondent turns around and either kills or seriously injures the person seeking the order? At least one judicial officer expressed concern about not wanting to be wrong, especially given a grisly murder committed by a parent that had just made dramatic headlines.

The sad part is that for the truly dangerous individual, the order for protection probably does little good. Such individuals are suffering from mental illness, chemical dependency, or such despair that no piece of paper is going to stop them. Many, if not most, of the abusive people in the cases that make the news were subject to orders for protection. The enraged abuser cares not. On the other hand, one-time offenders, perhaps involved in a dispute with a teenaged child or perhaps a spouse throwing an object in the heat of a fight, can find themselves with such an order in place, when counseling and/or the separation of the parties could have resolved that abusive event for good. In one such case, our 70-year-old client got angry with her spouse over finances. She threw the calculator across the table, unintentionally hitting her husband in the head. An order for protection was granted and she was removed from her home, never to return without police escort. It seems questionable that such a powerful weapon was appropriate in that instance.

Conclusion

So, are there answers? Probably not. It is reasonable for the court to grant an order for protection, if there is even a shadow of a doubt, to help protect the victim. Perhaps, however, we can find an interim step and provide better resources at the courthouse for the accused and better information regarding where else they can look for assistance. Additionally, perhaps a different type of order that deals with family situations within the family court could be created—one that imposes less restrictive, shorter-term consequences. With so many of the counties now adopting a “one-family, one-judge” format, perhaps the judicial officer assigned to the family law case, when there is one, can consider and take testimony and fit the order to the family. Meanwhile, the dilemma continues, with the hope that the system can weed out the abusers of the system from the true victims of the abuser.


A Level Playing Field?

While resources for petitioners seeking an order for protection are often readily available, respondents are more likely to look in vain for comparable support. In most cases the petitioner can get help filling out the forms, either at the courthouse or through a shelter; there may also be an advocate available to sit with the petitioner before and during the hearing, all at no charge. Advocates work in the system daily and know what has to be said, done, or proven to get the order in place and can answer any questions the petitioner may have. Although there are some similar resources for respondents, these resources vary widely, are not available in every county, and are rarely advertised or known about. Such a resource for the respondent would not have to be someone who sides with him or defends her, but instead could be someone who at least explains the process before the respondent arrives at court. Again, whether guilty or innocent, the respondent does not get the help the petitioner gets.


Notes
1 Minn. Stat. §518B.01, subd. 7(a).

2 Minn. Stat. §518B.01,

  •   subd. 5(b): if the petitioner seeks only the basic relief set out in Minn. Stat. §518B.01, subd. 7(a), then a hearing shall be ordered only if the respondent requests it or the court declines to grant the relief.
  •   subd. 5(c): if the petitioner seeks relief beyond the basics set out in Minn. Stat. §518B.01, subd. 7(a) or the court declines to grant the relief, then a hearing must be held within seven days.
  •   subd. 5(d): if an ex parte order is issued and grants the basic relief of Minn. Stat. §518B.01, subd. 7(a), then a hearing will be held within ten days of the court’s receipt of the respondent’s request for a hearing.

3 Minn. Stat. §518B.01, subd. 4(a).

4 Minn. Stat. §518B.01, subd. 4(b).

5 Minn. Stat. §518B.01, subd. 2(a)(1-3).

6 Minn. Stat. §518B.01, subd. 7(a)(1-4).


THERESA (TRACI) A. CAPISTRANT, principal of Capistrant & Associates, P.A., has been practicing in family law since 1991. She has represented many petitioners and respondents in Order for Protection proceedings, as well as in all other facets of family law.

REBECCA (BECCA) WONG is an associate with Capistrant & Associates, P.A. Her practice focuses primarily on Family Law and Wills. She, too, has represented clients on both sides in Order for Protection proceedings.

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