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Minnesota domestic abuse, orders for protection, restraining orders
 

DOMESTIC ABUSE
Restraining Orders and Orders for Protection

Domestic Abuse is a serious issue. Under Minnesota Statutes, domestic abuse is an offense that is carried out by an adult who is now or used to be married to the victim, who is a parent to the victim, who is unmarried to, but who lives or used to live with the victim, or who is parent to a minor or an unborn child. Despite the fact that the domestic abuse process is sometimes abused with fabrications occurring in order to gain advantage in family law proceedings, facts and statistics clearly indicate that strong laws are necessary.

SOME STATISTICS:

  • According to the United States Department of Justice during each year women were the victims of more than 4.5 million violent crimes, including approximately 500,000 rapes or other sexual assaults. In 29 percent of the violent crimes against women by lone offenders the perpetrators were intimates--husbands, former husbands, boyfriends or former boyfriends.

  • A woman is beaten every 15 seconds. (Bureau of Justice Statistics, Report to the nation on Crime and Justice. The Data. Washington DC Office of Justice Program, US Dept. of Justice. Oct 1983)

  • Domestic violence is the leading cause of injury to women between ages 15 and 44 in the united States - more than car accidents, muggings, and rapes combined. (Uniform Crime Reports, Federal Bureau of Investigation, 1991)

  • Battered women are more likely to suffer miscarriages and to give birth to babies with low birth weights. (Surgeon General, United States, 1992).

  • "One in five women victimized by their spouses or ex-spouses report they had been victimized over and over again by the same person." (The Basics of Batterer Treatment, Common Purpose, Inc., Jamaica Plain, MA)

  • Women of all cultures, races, occupations, income levels, and ages are battered - by husbands, boyfriends, lovers and partners. (Surgeon General Antonia Novello, as quoted in Domestic Violence: Battered Women, publication of the Reference Department of the Cambridge Public Library, Cambridge, MA)
OPTIONS

A victim can make a report of assault to police in order to have criminal charges filed. A victim may also file a civil suit seeking damages. This is true even if the abuser is a spouse (CLICK HERE FOR ADDITIONAL INFORMATION). Additionally, a victim may file for Order

ORDERS FOR PROTECTION (OFP)

for Protection against the abuser.

An order for protection is a restraining order prohibiting the person accused of committing abuse from continuing the abuse. Often the Order for Protection will also include provisions limiting or prohibiting contact with the victims. This obviously becomes a difficult issue where minor children are involved.

PROCESS FOR OFP

The Requirements Orders for protection can be obtained at the county courthouse or at the county domestic abuse office in the county where the victim lives. Orders for Protection may also be drafted by attorneys or at battered womenís shelter or womenís centers. For a list of centers near you, Click Here. There is no fee for an order for protection, and the county is obligated to provide the public with assistance in completing the paperwork. For a court order to be granted, a petition must be supported with evidence of the alleged abuse. As a result, it is important to include specific facts regarding the abuse in your affidavit. If the petition is defective or if it fails to list sufficient allegations of abuse, the petition may be dismissed. You may wish to consult with a lawyer before completing your OFP petition.

A Petition for an Order for Protection may seek other relief in addition to a restraining order. Other common requests include seeking an order for restitution, requiring the abuser to attend counseling, and for child support and/or spousal maintenance.

TEMPORARY ORDERS

Once a Petition for an OFP has been filled out with a supporting affidavit, it is presented to the signing Judge on the same day. The signing Judge reviews the petition to determine if the allegations of abuse are sufficient to warrant the entry of an Temporary Order prohibiting contact between the parties until a hearing can be held. In cases where the parties live together, the alleged abuser may be served and required to leave the family home with little more than the clothes on his back.

FIRST APPEARANCE

After a Temporary Order is entered, an initial hearing will be scheduled and held within seven (7) days. Regardless of whether the accused person attends the court hearing, the abused person or his or her guardian must be present. At In most counties, the initial hearing allows the alleged abuser to either:

  • Admit to the Allegations of Abuse and allow the restraining order to enter;
  • Deny the allegations of abuse but allow the restraining order to enter without Findings that any abuse has occurred;
  • Deny the allegations and request an evidentiary hearing ( another term for a trial) on the issues.
SECOND APPEARANCE

If an evidentiary hearing is requested, it is likely to occur within seven (7) days from the initial appearance. At the evidentiary hearing the Petitioner proceeds first calling witnesses and testifying regarding the allegations of abuse. It is at the hearing that the person alleging abuse should substantiate the abuse with medical records and police reports. The alleged abuser has the opportunity at such a hearing to cross examine any and all witnesses called by the Petitioner. The alleged abuser proceeds second. He is allowed to call any witnesses that support his contention that the alleged abuse did not occur. The Court will usually issue an Order on the same day that the evidentiary hearing is held. If the Petition is granted and the Judge determines that abuse has occurred, the resulting order will remain in effect up to one year. Despite the fact that domestic abuse hearings are limited with regard to duration and the evidence presented, a resulting orders can have devastating consequences for the alleged abuser:

  • Loss of Custody. Once a Court determines that abuse has occurred, it makes it difficult, if not impossible, for the abuser to seek custody of minor children. There is a presumption under Minnesota Statutes that a person determined to have committed an act of abuse should not be granted custody. A subsequent court cannot overturn the prior Courtís Finding that abuse occurred. The issue cannot be relitigated in any other proceeding!!
  • Loss of Weapons. A person who is the subject of an Order for Protection cannot possess a weapon for any purpose, even hunting, under the federal Brady bill. This is a particularly stern consequence where the accused abuser is a member of law enforcement. Obviously, without the ability to possess a weapon, that person cannot work.
  • Risk of Violation. Once an OFP has been entered, the alleged abuser is always at risk of being charged criminally for any reported violation, even if no abusive conduct occurs. In many instances violations are reported for dropping off children for visitation or other minor reasons.

ENFORCEMENT OF OFP

Enforcement of Orders For Protection Victims who have obtained Orders for Protection expect those orders to be enforced, regardless of when or where a violation occurs. To address that concern, Courts throughout Minnesota are now entering information on new Orders for Protection in a centralized database.

Once entered into the Court OFP System, information on served temporary orders and all permanent orders is available to court staff anywhere in Minnesota. This transformation from manual to automated processing of OFP records was accomplished on a county by county basis. All counties were automated and capable of entering orders on December 31, 1998. Only Minnesota court personnel have access to the Court OFP system. However, selected information from the Court OFP System is automatically passed, on a daily basis, to another automated system called the CJIS Hot Files which is available to criminal justice agencies throughout Minnesota. As a result, law enforcement officers throughout Minnesota and the nation can now access information about an existing order through their agencies' Criminal Justice Data Network computers and can then obtain further confirmation of the full information contained in the order by contacting the controlling law enforcement agency. With this information, officers will be better able to respond to allegations of violations, more likely to arrest suspected offenders, and better equipped to make decisions about issuance of gun permits.

VIOLATIONS OF AN OFP

When an order for protection, either temporary or permanent, is granted and the person prohibited from contacting the abused attempts to violate the order, the police should be contacted through the 911 emergency system and notified of the order. Once the order is enforced and the alleged abuser removed, a complete police report should be filed documenting the incident. Violation of an order is a criminal offense for which charges may be brought.

CHANGING AN OFP

If circumstances arise making a change in the order necessary, the county domestic abuse office or county clerk must be contacted to set another hearing. An appointment will be set to request a hearing and the process is similar to that listed above. If an extension of the protection period is needed, a victim or guardian should contact the appropriate officials approximately three weeks before the current order expires.


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