A recent issue of From the Bench addressed protective orders. Today we review contested hearings on those orders.
As always, this article is purely informational; it does not constitute legal advice.
What happens when the defendant on a protective order (an Order of Protection, Injunction Against Harassment, or Injunction Against Workplace Harassment) wants to object to the order? A defendant who disagrees with a protective order has the right to have one hearing, any time during the year the order is in effect.
When a defendant is served with a protective order, they will also get a form entitled, “Defendant’s Guide Sheet for Protective Orders.” The defendant should carefully review the terms of the protective order and read the Defendant’s Guide Sheet. A defendant who does something that is prohibited by the protective order can be charged with a crime for violating it. And the Guide Sheet contains important information about the protective order, the defendant’s rights, and other considerations.
To request a hearing to contest a protective order, the defendant must file a written request with the court. If the order grants plaintiff the exclusive possession of the residence, the hearing will be set within 5 business days; otherwise, within 10 business days. The court will notify both parties of the hearing. Either party may hire an attorney.
Typically, contested hearings are held in person. You may contact the court to ask if there are other options, or if you need special accommodations. If a party is absent from a contested hearing, the judge will determine, based on the rules, whether the order should stand or be dismissed.
At the hearing the plaintiff has the burden to prove by a preponderance of the evidence why the order should remain in effect. Each side may offer evidence they believe will prove, or disprove, the allegations made in the plaintiff’s petition. Both sides will have the opportunity to be heard, to call and ask questions of witnesses (whose testimony should relate to the incidents alleged in the plaintiff’s petition), to cross-examine the other side’s witnesses, and to present documentary or other evidence.
When the hearing ends, the judge can keep the protective order in place with its original terms, modify the order, or dismiss it entirely. The judge will explain the basis for his or her decision. Either side may appeal that decision.
There are other important things to consider. For example, the sworn testimony given at a contested hearing may be used as evidence in any other proceeding, including in a criminal case. This may be especially important if criminal charges have been filed or there is a criminal investigation pending that relates to the allegations made in the plaintiff’s petition. To protect their constitutional rights (which both a defendant and a victim have in any criminal case), in these circumstances the defendant may wish to seek legal advice before asking for a hearing. For the same reason, a plaintiff who has been a victim of a crime may wish to seek legal advice, assistance from a victim advocate, or both, before a contested hearing.
In addition, the defendant’s request for a hearing can impact their right to possess firearms. As explained in the Defendant’s Guide Sheet, under a federal law certain conditions may cause a defendant to be prohibited from possessing firearms while the order is in effect. If a hearing is set and those conditions exist, the federal prohibition will apply even if the protective order itself does not prohibit firearms possession.
This article is a brief overview. For resources, legal authorities, and more, see azcourts.gov/domesticviolencelaw/Domestic-Violence-Resources. For legal advice, contact an attorney.
Editor’s Note: Judge Catherine Gaudreau is the associate judge for the city of Surprise.