An Order of Protection is a document issued by a Court which provides protection to those that are victims of stalking, sexual abuse, and domestic abuse.
In cases involving stalking and sexual assault, a victim can petition the court for an order of protection against the perpetrator regardless of the victim’s relationship to the individual.
However, when it comes to domestic abuse, the victim’s relationship with the perpetrator must fall into certain categories for an Order of Protection to be issued.
In these cases, the abuser must be:
We often get asked about the effect of an Order of Protection on living arrangements, children, and firearms.
Another question we often hear is, “Are both parties affected by an Order of Protection?”
And the answer to these questions is that the protective measures included in an Order of Protection and their effects vary depending on your specific circumstances.
However, the things an Order of Protection may do, include (source):
Also, it is important to note that although only the Respondent is affected by the Order of Protection, courts takes a dim view of the Petitioner contacting the Respondent after the Order of Protection is issued because that indicates to the Court that the Petitioner is not really afraid of the Respondent, and the Court may simply dismiss the Order of Protection.
Although there are not different “types” of Orders of Protection, there are two distinct stages to an Order of Protection in Tennessee.
The first stage occurs when the person seeking the Order of Protection files a sworn Petition alleging that another person committed domestic abuse, stalking, or sexual assault against them.
If the Petition is granted, a temporary Order of Protection is issued.
The second stage takes place at a hearing which is set within 15 days, whether or not the initial Petition is granted.
During this hearing the Judge determines whether the temporary Order of Protection should be dissolved, extended, or modified.
If the temporary Order of Protection was not granted, the Judge determines whether or not one will be granted.
There are two main steps to getting an Order of Protection in a quick and efficient manner in Sumner County, which we detail below.
The first step of the process is going to the Sumner County Sheriff’s Department — which is open 24 hours a day, 365 days of the year — to fill out a form known as a Temporary Order of Protection.
This form is also known as an Ex Parte Order of Protection.
At this time, the victim will meet with a Commissioner.
During the process of obtaining an Order of Protection, the Court refers to the alleged victim as the Petitioner and the alleged perpetrator as the Respondent.
The term “Ex Parte” means that the Petitioner is approaching the Court out of the presence of the Respondent.
When the petitioner meets with the Commissioner, he or she will assist the Petitioner with filling out the form and evaluate whether or not an Ex Parte Order of Protection should be issued.
On the form, the Petitioner identifies who the Respondent is and what he or she has has allegedly done to put the Petitioner in fear.
The Commissioner will grant a temporary Order of Protection if, based only upon the statement of the Petitioner, he or she determines that the Respondent has committed domestic abuse, stalking, or sexual assault.
Whether or not the Commissioner grants the temporary Order, the Respondent will be served by a deputy sheriff and there will be a hearing in front of a Judge within 15 days.
In Sumner County, hearings for temporary Orders of Protection are typically set in General Sessions Court.
However, if a Complaint for Divorce is filed, or is anticipated to be filed, in conjunction with the Order of Protection, the hearing on the Order of Protection is transferred to the Court where the Complaint for Divorce was, or will be, filed, either Circuit Court or Chancery Court.
This Court will set a new date for the hearing on the Order of Protection.
At the hearing, the Judge will hear testimony from both parties, as well as any witnesses.
They will accept evidence in the form of documents, phone records, e-mails, texts, receipts, or recordings.
At this, and any subsequent hearings, either or both of the parties may be represented by an attorney.
Based upon the testimony and the evidence, the Judge will grant the Order of Protection if they believe that the Respondent has been guilty of domestic abuse, stalking, or sexual assault against the Petitioner, and, if so, he will determine the terms of the Order of Protection.
This is a civil matter, which means that the judge must be convinced simply that it is more likely than not that the Respondent is guilty, not the higher criminal standard, which is finding that the Respondent is guilty beyond a reasonable doubt.
The effects of an Order of Protection imposed broad and severe, and can include:
If granted, the Order of Protection will be in effect for a specific period of time as determined by the judge, not to exceed one year.
In Tennessee, a person violating an Order of Protection (the “Defendant’) can be arrested and charged under TCA § 39-13-113, which can result in:
It is important to understand, however, that these penalties are not applicable before a hearing with a Judge.
They cannot be imposed if only a temporary Order of Protection is in place.
However, if the Respondent violates the temporary Order of Protection, they can be found guilty of contempt and be fined or sentenced to jail for up to 10 days for every violation.
You may be wondering how strict these Orders are.
The answer is that they are very strict.
In fact, I often tell clients that they should treat people covered under an Order of Protection as if they don’t exist.
This means having absolutely no contact directly or indirectly, including social media.
Still not quite sure how strict the courts are about Orders of Protection?
Well, let me give you a couple of examples that demonstrate how important it is that there be NO contact between the two parties in any way, shape, or form.
Around the Christmas holidays, a husband with an Order of Protection in place on him took presents for his children over to his father-in-law’s home.
This same husband placed his wedding ring on the windshield wiper of his wife’s car.
In neither case did he have any contact with his wife or children, but these were considered to be violations of the Order of Protection that had been issued against him.
It wasn’t the contact, it was the acknowledgement of their existence.
Similarly, posting about someone on social media has been considered to be a violation of an Order of Protection.
Keep in mind that these are just a couple of examples, but they highlight how strict Orders of protection are in the eye of the law.
One question we often get asked is what the difference is between an Order of Protection and a Restraining Order.
Although both are court orders that protect against physical violence and abuse, they do differ in several ways.
As previously discussed, Orders of Protection are issued by a court to protect victims of domestic abuse, sexual assault, and stalking.
However, in order to be granted an Order of Protection for domestic abuse, the victim’s relationship with the perpetrator must fall into certain categories.
Ex Parte Orders of protection are valid for 15 days and can be extended for up to one year if a judge sees fit.
The issuance of an Order of Protection mandates that the Respondent not be in possession of any firearms or ammunition.
A violation of an Order of Protection is considered to be a criminal offense and can subject the offender to possibly serving time in jail.
Restraining Orders, on the other hand, can cover any kind of matter and can be specifically tailored to the persons and situations.
There does not have to be an existing relationship of a specific type between the Petitioner and the Respondent.
I had a situation where an older man was creeping out a young female entertainer, so we agreed to very specific activities that he could not do.
It would have been very difficult to tailor an Order of Protection in this way.
Restraining Orders generally are negotiated between the parties, they are not imposed by a judge.
Unlike Orders of Protection, which are typically only valid for a year, Restraining Orders can be imposed for any period of time, or remain in effect indefinitely.
Restraining Order are civil orders, so a violation is subject to contempt, not a criminal action, so the possibility of being incarcerated is very unlikely.
As a result, they are not appropriate where the Petitioner is truly afraid and wants the police to come if the Respondent threatens her.
If a judge denies your Order of Protection, you have two main options.
1. Reapply for an Order of Protection
In certain circumstances, you may have the option of reapplying for an Order of Protection if there has been a new event involving violence or abuse.
If you feel that an error of law was made by the judge presiding over your case, you may be able to appeal.
However, the appeal process can be quite complicated and will probably require the assistance of an attorney or domestic abuse organization.
Aside from reapplying for an Order of Protection or appealing, it is important to remember that stalking, domestic abuse, and sexual assault are all illegal.
Therefore, you can and should always report these instances to the police regardless of whether or not you have an Order of Protection in place.
I invite you to contact me about Order of Protection Cases.
Ken Phillips Law
113 E. Main Street
Gallatin, TN 37066
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