Domestic Violence Orders of Protection

- INDIANA COURT OF APPEALS RULES THAT NEW EVIDENCE MUST BE PRESENTED TO JUSTIFY RE-ISSUANCE OF PROTECTIVE ORDER AFTER IT EXPIRED

In Indiana, under the Civil Protective Order Act under I.C. § 34-26-5, a local trial court can issue a domestic order of protection (often referred to as a "protective order") under procedures and for reasons specific to domestic relations cases. It specifically states:

IC 34-26-5-1 Prevention of domestic and family violence

This chapter shall be construed to promote the:

  1. protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and
  2. prevention of future domestic and family violence.

IC 34-26-5-2 Persons eligible to file petition for order of protection; petition on behalf of a child; prohibition on mutual orders; jurisdiction for order sought against a minor

  1. A person who is or has been a victim of domestic or family violence may file a petition for an order for protection against a:
    1. family or household member who commits an act of domestic or family violence; or
    2. person who has committed stalking under IC 35-45-10-5 or a sex offense under IC 35-42-4 against the petitioner

The standard provided for relief states that if a respondent represents a credible threat to the safety of a petitioner or a member of a petitioner's household, the court shall grant relief necessary to bring about a cessation of the violence or the threat of violence. This may include that firearms be relinquished to local law enforcement. Generally, the order expires after two years, but the law has specific provisions allowing for its renewal.

The Indiana Court of Appeals recently issued a decision discussing the use of the domestic order and reminding parties that re-issuance of such a protective order after its expiration is not guaranteed. Although it issued its ruling in J.K. v. T.C., 64A05-1406-PO-259 as a memorandum decision not to be cited as legal precedent, the case provides an excellent discussion of the protective tool and use of renewals and the evidence required.

The facts of the case involved a married couple who had no children were divorced in 2008. When the wife told her husband that she wanted a divorce in 2007, she claims he choked her with her forearm. She did not offer evidence of any other, prior incidents of alleged violence. On December 10, 2007, the trial court entered a protective order against the husband. As with domestic orders for protection, it expired two years later, on December 9, 2009. On December 10, 2009, the wife filed for a second protective order against her ex-husband, which the trial court granted on January 8, 2010. It expired on December 10, 2011. On December 12, 2011, she filed for a third protective order, which the trial court granted on February 6, 2012, and which expired on February 3, 2014. Although the husband lived two doors down from his ex-wife, there was no evidence of any problems between them since the initial incident in 2007. The husband contested the continual re-issuance of protective orders, but the trial judge stated there was no statute of limitations for such orders. He ruled that the original single incident was sufficient to justify a continued protective order for years to come and even suggested that perhaps the existence of the protective order as a reason that there had been no further incidents.

On appeal, that ruling was reversed, with the court stating, "We do not believe the legislature intended that protective orders can be reissued, renewed, or extended ad infinitum based solely upon evidence related to the protective order's initial issuance, contrary to the trial court's belief." The Court of Appeals cited its recent decision, A.N. v. K.G., 10 N.E.3d 1270, 1272 (Ind. Ct. App. 2014), which held an extension of a protective order "must be viewed in light of the continuing harm or the threat of continuing harm that necessitated the issuance of the protective order in the first instance," and that "the extension must be equally supported by a court's conclusion that such additional time, in excess of the statutorily two-year approved extension, is necessary to protect the petitioner and to bring about a cessation of the violence or the threat of violence."

The statute places the burden on the party seeking renewal to prove by a preponderance of the evidence that a protective order should be extended. The appellate court also was troubled that the trial judge cited the protective order as the reason there had been no instances of domestic violence since the choking allegation. "[Such logic] places a respondent in a no-win situation if full compliance with a protective order can be a basis for extending the order or issuing a new one."

In sum, the Indiana Civil Protective Order Act is intended to provide legitimate protection to a party in a domestic case where the facts suggest a threat of harm. However, there are protections for both parties, as these orders are limited. In appropriate cases, protective orders can, and should, be renewed upon a proper showing to the Court. They are not to be extended beyond the scope of the threat, and certainly should not be used as a tool to perpetuate the conflict between the parties by unduly restricting the activities of the other party indefinitely.

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