Protection Order Cases – Civil or Criminal?

Protection order cases arise out of a civil case and there is a Petitioner and a Respondent. When a protection order is granted, it is simply an order, not a criminal conviction.  However, if the order is then violated, that violation of the order is a crime that can be prosecuted.

When a criminal case is initiated against someone and there is an alleged victim to the crime, the Court will almost always issue a No Contact Order (NCO) keeping the accused away from the victim. An NCO accomplishes the same function as a protection order but is attached to a criminal case.  If the criminal case is dismissed for some reason, the NCO is also terminated. NCO’s usually remain in place while a criminal case is pending and can also remain in place after sentencing, as part of the sentence imposed on the case.

Types of Protection Orders

There are several types of protection orders and it is important to think about which one is appropriate for your case.  Domestic Violence Protection Orders (DVPO’s) are appropriate in cases where there is a family, dating,  marriage, or cohabitation relationship and there has been violence or threats of violence in the relationship.  Anti-Harassment Orders (AHO) are appropriate where someone has engaged in repeated harassing behavior and the person has been told to stop contact and has not complied with that request, Anti-Stalking Orders are appropriate where someone is conducting real or online surveillance that can be proven, and Sexual Assault Protection Orders (SAPO’s) are appropriate when there is an allegation of sexual assault that has been made.

Initiating a Protection Order

Protection orders should be initiated either in a District Court or Superior Court near where you live.  If there is an active divorce or child custody case and the request for a protection order is connected to that case, it will be consolidated with that family law case and will likely end up in Superior Court.  Once you select which court you would like to file your case in, you can go to the Court website and find the forms you need to fill out to initiate the case.  You will need to fill out a Petition in which you will provide information about why you feel you need an order and other forms related to initiating the protection order case.  Once the petition is filed a Judge will review it and decide whether a Temporary Protection Order should be issued to keep the Respondent away from you until the full hearing.  Most of the time a Temporary Order is issued.  Once the petition is filed, a court date will be set for a full hearing on whether a longer-term order should be issued.  Your materials must be served on the Respondent.  Law enforcement can serve the materials or you can hire a legal messenger to serve the petition and hearing date on the Respondent.

Supplementing the Initial Petition

The initial Petition can be supplemented before the hearing with additional materials as long as they are filed in court and served on the Respondent before the hearing.  If there is not sufficient time for the Respondent to respond to the additional materials, that person might request and be granted a continuance on the hearing date so that they can respond.  

Supplemental materials can include:  a declaration from you or other witnesses setting out what has happened in an organized way, pictures, diagrams, voicemails, text messages or other information that corroborates your account of what has occurred.

Hearing on Protection Order Cases

Because seeking a protection order is a civil matter, the Petitioner must only prove that the events justifying the Order occurred by a preponderance of the evidence (or, that it is more likely than not that they occurred).  This is a much lower burden than in a criminal case where allegations must be proved beyond a reasonable doubt.

During the hearing, the Judge will put the parties under oath and have them describe what has occurred and/or answer questions from the Court.  The Judge will make a ruling at the end of the hearing and either grant the request for a longer order or deny the request.  

Orders are typically issued for 1-year if they are issued.  The Petitioner should prepare a draft order with the exact terms the Petitioner is requesting.  The Petitioner may want to specify no online contact, no contact through social media platforms, or that Respondent not only stay away from home and work but also other places that are regular spaces the Petitioner goes to, such as a gym, school or place of worship.  The Petitioner can also argue for an order that is longer than one-year, but there should be a reason offered that a year-long order will not offer sufficient protection.

Should the Parties Have Representation on Protection Order Cases?

The parties can represent themselves and are not required to have a lawyer represent them in these cases.  However, an attorney who is experienced in handling cases of this kind can make a much more effective presentation than a person representing themselves.  Also, Respondents need to be aware if there are allegations that are criminal in nature or are connected to a criminal investigation or case, that they might incriminate themselves if they respond to a petition without the assistance of an experienced attorney.

Contact Jennifer Horwitz Law for a Paid One-Hour Consult or Representation 

Jennifer Horwitz is experienced representing both Petitioners and Respondents in protection order cases, including LGBTQ domestic violence cases. She can either represent a party from start to finish on the case or can consult with a party representing themselves. Parties on these cases who have consulted with Jennifer Horwitz have said that even a one-hour consult put them in a much better position to represent themselves than they were in before the consult.

During a consult, Jennifer will listen to the facts that the client feels are relevant to the Petition or their response, counsel them on how to develop and present corroborating information, provide a declaration template and the applicable statute(s) to the client. Jennifer can help focus and organize your argument in a consult and is also available for a subsequent consult once materials are prepared to review materials and give feedback. Jennifer Horwitz does NOT handle protection order cases connected to family law cases. Those cases should be handled by a family law attorney.

Contact the Law Office of Jennifer Horwitz today to discuss retaining Jennifer on your protection order case or retaining her for a paid one-hour phone consultation about your case.