The Mn Criminal Defense, Personal Injury & Family Law Blog
How Do Hutchinson Criminal Defense Lawyers Deal with Restraining Orders?
January 7, 2019
Every year, more than ten million Americans are the victims of domestic violence. The abuse could be physical or non-physical. Moreover, the abuse could also be a sudden explosion of violence or a long series of smaller events. Many of these incidents result in serious or even fatal injuries. Since so much is at stake, it’s important that people who need help get it straightaway.
Generally, McLeod County judges cannot take action without according all sides due process of law. Domestic protective orders are one of the few exceptions. If you need immediate protection, a Hutchinson criminal defense lawyer can make sure you get it.
However, the due process waiver is only temporary. Before a judge takes stronger action, it is important to hear both sides of the story. That’s especially true if there is a parallel family law or divorce proceeding. Very few victims manufacture or inflate domestic violence charges to gain an edge in civil court. But it has happened before, and it will happen again.
Who is Entitled to Protection
Over the last fifty years, the definition of “family” has changed significantly in Minnesota. Most Hutchinson children live in non-traditional households. Minnesota’s domestic violence law recognizes these shifts, so many different individuals are entitled to protection.
Common Child: Some people have children together but never marry. In fact, some of these couples never had much of a relationship at all. Nevertheless, violence still sometimes happens in these situations, so protection is available.
Current or Former Dating Partners: The above categories are objective. People are either married or they are not. But this category is a bit subjective. Two people need not be engaged to be “dating partners,” but they probably must have gone out more than once or twice.
Persons Related by Marriage: Most domestic violence claimants are current spouses, estranged spouses, or former spouses of the alleged abuser. This definition may also encompass in-laws and other non-marital relationships. Common-law marriages have not been legal in Minnesota since 1941, unless the couple was common-law married in another state.
Current or Former Roommates: This category is vague as well. One night on a sofa does not make one a roommate. However, there’s no requirement for a written roommate agreement or that a person is listed on a lease.
A number of individuals know they are entitled to protection and they know they need protection. Nevertheless, they do not contact Hutchinson criminal defense lawyers about a possible restraining order. Many of these people assume that the order is just a piece of paper which is almost meaningless.
But that’s not true. If a person obtains a restraining order, the alleged victim can distribute copies of that order to schools, daycares, churches, and other places their children frequent. If these organizations receive notice, they have a legal duty to honor the protective order. Furthermore, the ex parte restraining order is a springboard. Once the alleged victim obtains one, it’s much easier to secure broader and longer-lasting protection in a subsequent hearing.
Types of Restraining Orders
Alleged victims in McLeod County may obtain either an HRO (Harassment Restraining Order) or an OFP (Order For Protection). In general, victims who fear for their physical safety, or the safety of their children, should apply for OFPs. As the name implies, HROs usually prevent stalking and other non-physical forms of abuse.
Minnesota judges are about the only ones in the country who can issue long-term protective orders based on one side’s testimony. The judge will issue a protective order if there is an imminent threat of domestic violence and the applicant needs immediate protection. The judge will either grant a protective order that’s good for up to two years or deny protection and set a hearing. Once the alleged abuser receives notice, that person can also request a hearing.
If the alleged abuser previously violated a protective order, the OFP can be valid for up to fifty years. The alleged abuser can ask the judge to modify or vacate the order later. Normally, a five-year waiting period applies.
At the subsequent hearing, which either party can request, the judge may enter additional orders, such as:
Forfeiture of firearms,
Payment of support, and
Attending parenting, anger management, or other classes.
Generally, HROs offer the same protections. But there are some procedural differences. If the alleged victim cites only one harassment, stalking, or other incident, the alleged victim must also swear that there is an immediate threat of physical violence.
A Hutchinson criminal defense lawyer may also go to civil court and obtain roughly the same protection. The parties have more control over the matter in civil court, and criminal protective orders have more teeth. Many times, at Carlson & Jones, we suggest that alleged victims seek both types of protection.
We are dedicated to the rights of victims, and we also believe that there are usually two sides to every story. A protective order can have dire consequences, both professionally and personally. So, we sometimes represent alleged abusers and make sure they get their day in court.
Work with Assertive Attorneys
Whether you are faced with domestic violence or feel you have been unfairly charged, help is available. For a free consultation with an experienced Hutchinson criminal defense lawyer, contact Carlson & Jones, P.A. AFter-hours visits are available.