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Orders for Protection (OFP) in Minnesota 
 


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Minnesota false accusations of abuse, domestic abuse, orders for protection, restraining orders

The Abuse of Orders for Protection and Domestic Abuse Restraining Orders in Minnesota

Restraining Orders and Orders for Protection

Domestic abuse is a serious problem in the United States.  Based on a 1999 study by The Commonwealth Fund, Health Concerns Across a Woman’s Lifespan estimates range from 960,000 incidents of violence against a current or former spouse, boyfriend, or girlfriend per year to three million women who are physically abused by their husband or boyfriend per year.

Often, abuse is not observed by others and occurs behind closed doors.  However, the reaction of the state legislatures, Judges and courts has been equally objectionable.  All too often, restraining orders are used to impose long lasting sanctions on those accused with very little evidence.  In Minnesota, this comes in the form of a restraining order called an Order for Protection. 

Orders for Protection require no filing fee and simplified forms exist for their filing.  Battered women's shelters and abuse advocates also assist in the preparation of such documents to make sure they meet statutory criteria.  As a result, the ease to seek a restraining order is significant. 

Additionally, regularly, restraining orders are entered where there is little in the way of verifiable facts.  All too often, Judges elect to err on the side of caution rather than holding Petitioners of restraining orders to a reasonable burden of proof. This occurs in the context of boyfriends and girlfriends, spouses or even in the context of disciplinary action related to children involving parents and step parents. 

Judges, who must stand reelection, would rather err on the side of caution than see news headlines indicating that they denied a restraining order only to have the respondent of the restraining order later harm the petitioning party.  This employment self-preservation often means that respondents, primarily men, are subjected to significant restrictions on their liberties based on weak and uncorroborated claims.

Under the law, "Domestic abuse" is defined as an act against a family or household member by a family or household member and includes:

(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. 

"Family or household members" are defined as:

(1) spouses and former spouses;

(2) parents and children;

(3) persons related by blood;

(4) persons who are presently residing together or who have resided together in the past;

(5) persons who have a child in common regardless of whether they have been married or have lived together at any time;

(6) a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and

(7) persons involved in a significant romantic or sexual relationship.

The consequences of a Domestic Abuse Restraining Order are also considerable. Despite the fact that an Order for Protection is not a criminal proceeding, the record does appear on a person's criminal record with the centralized database in the state.  In Minnesota, that means it appears on the record maintained by the Bureau of Criminal Apprehension.  That record alone can impact a person's ability to find employment or even a rental apartment where a background check is performed.  the employer and landlord are understandably concerned about police calls and potential liability for their choices.

Even more vexing, an Order for Protection contains a notice of the Federal Firearms Prohibition.  It says that if the alleged abuser has been given notice and the opportunity to attend a hearing and meets Federal law requirements, then that person may be prohibited from having or buying a gun. That prohibition can even  persist beyond the effective date of the restraining order.   Permits to carry a firearm are regularly denied on that basis even after the restraining order has expired. Orders for Protection may last for one to two years. 

A gun or firearm is defined by federal law to mean any weapon that is designed to fire a bullet or other projectile by means of an explosive. A firearm silencer or muffler is also included in the definition of a firearm, as is a destructive device and ammunition. The federal definition of a firearm does NOT include antique firearms, which is any firearm manufactured in or before 1898.  This is codified in 18 USC § 921- Definitions. 

Perhaps the most compelling feature of the Order for Protection is the fact that a person who is found to have committed acts of abuse pursuant to the rudimentary procedures used in OFP hearings is that it creates a presumption that the alleged perpetrator should not be awarded physical custody of children.  Minnesota Statutes Sec. 518.17 states that "the court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents."   This provides a substantial incentive for parents seeking an advantage in custody proceedings to file false charges of abuse.  That is particularly true given the limited basis of the hearing allowed in such proceedings.

All appropriate law enforcement agency are notified of the Order for Protection and a person who violates an order for protection may be charged criminally for any violation.  Even a simple call may result in a criminal misdemeanor with a required sentence of  three days imprisonment and the person accuse must be ordered to participate in counseling or other appropriate programs selected by the court. A second violation within ten years is a gross misdemeanor who with a  minimum sentence of ten days imprisonment.  A third violation is a felony with penalties of not more than five years or to payment of a fine of not more than $10,000, or both.

What is even more extraordinary is that these penalties apply even if the person who filed for the order requests contact or invites the accused into their home.

Even the process for obtaining an Order for Protection is extraordinarily flawed and subject to abuse.  A Petitioning party files a Petition and an immediate ex parte (emergency) order.  The respondent, without hearing, is precluded from contacting the petitioning party which also often means prohibited from contacting their children for parenting time.   This status quo exists for a fourteen (14) days and sometimes more under Minnesota Statutes sec. 518B.01, Subd. 5.    Where the only relief requested is a restraining order, some courts require the person accused to request a hearing.   If a hearing is not requested, the restraining order enters by default.  If a hearing is requested, it must be held within ten days of the
court's receipt of the request.  That is the maximum amount of time allotted to subpoena witnesses and to put a case together. 

When it comes to Order for Protection, the stakes can be very high and the consequences long lasting.  It is always important to hire an experienced attorney to fight the allegations as soon as a petition occurs. A delay may prejudice your ability to build and present a strong defense. 

For a consultation with experienced counsel call (612) 240-8005.

 

 

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