Domestic Violence and Orders of Protection
Orders of Protection are commonly known as “Restraining Orders” or “Protective Orders.” The purpose of an Order of Protection is to prevent contact, in person or via phone, email, letter, etc., between a person and yourself. Orders of Protection are not to be taken lightly, and the Berkshire Law Office can help you obtain an Order of Protection, or challenge an improperly obtained Order.
An Order of Protection can be granted by a municipal court, a justice court or the Superior Court. However, if you already have an action pending in Superior Court for legal decision-making (custody) or dissolution of marriage, you are required to seek an Order of Protection from the Superior Court. There is no cost to obtain an Order of Protection in any court.
An Order of Protection is designed to keep a victim of domestic violence safe from his or her perpetrator. The Order will contain language which states what locations are protected (address of home, work, school), the manner of communication, if any, that is permitted between the perpetrator and the victim, and other language to ensure the protection of the victim of domestic violence.
In order to obtain an Order of Protection, you must meet the following criteria:
- The defendant may commit, or has committed, an act of domestic violence within the past year, or longer in some circumstances. The definition of “domestic violence” is governed by 25 different criminal statutes, under A.R.S. § 13-3601.
- There is also what is referred to as the “relationship test,” which includes various relationships such as you either live with the defendant, lived previously with the defendant, have a child in common with the defendant, blood relation, or a romantic relationship. See A.R.S. § 13-3601.
Orders of Protection sometimes will include a child or children of the parties. Although an Order of Protection should not be used to prevent the other parent from having access to the child, unless that parent has committed an act of domestic violence against the child or directly in the child’s presence, they can be used in certain circumstances.
An Order of Protection can grant the victim of domestic violence exclusive use and possession of a residence that is shared with the defendant/perpetrator. The defendant, once served, is permitted to return to the residence only on one occasion to retrieve necessary belongings, but he or she must be accompanied by law enforcement to do so, in order to protect the safety of the victim.
An Order of Protection is only valid and enforceable by law enforcement once it is personally served upon the defendant. Our attorneys can assist you in having your Order of Protection served by a lawful process server or an appropriate law enforcement agency.
Once served, the defendant/perpetrator has the option to request one hearing. The request must be made to the same court that issued the Order of Protection and the request must be made in writing. The court must set a hearing within 10 days of the request or shorter depending on whether a child or residence is listed on the Order.
If a person violates an Order of Protection, the person is subject to arrest and can be prosecuted for interference with judicial proceedings. Orders of Protection are effective for one year after service upon the defendant.
Orders of Protection granted in other states are given the same effect in Arizona as an Order of Protection issued by a court of this state.