Obtaining an Order of Protection or Injunction Against Harassment
Obtaining an Order of Protection or Injunction Against Harassment
Most people have no idea what to do when the need for a protective order arises. Fortunately, obtaining the order is relatively easy. You start by filing a Petition for an Order of Protection or Petition for Injunction Against Harassment. You can find a form petition at any courthouse. Despite the fact that the court staff will assist you by providing the form for the petition, there are many things to keep in mind while seeking a protective order. It is important to know how the process works and what information you should put in your petition to increase the likelihood that the judge will grant the order. The court staff will not assist you in filling out the information on the form, aside from possibly answering general questions about the form itself.
1. Obtaining the Order
a. Where to File
The first question to ask your self is, “where should I file my petition?” The petition may be filed in a county Superior Court, a city court, or a justice court. The order, if issued, has the same effectiveness no matter which court granted it. One thing to keep in mind is that your protective order case will have to be transferred to Superior Court if a family law case is filed between the parties. Additionally, if there is already an active family law case, only the Superior Court may issue a protective order. Nonetheless, if a city court or justice court issues a protective order while a family case is pending, the order is still valid and effective.
b. Filing the Petition
Next, you must decide what you put in the petition. A petition for an Order of Protection must allege each specific act of domestic violence, and name each person you are seeking to protect with the order. A petition for an Injunction Against Harassment must allege a series of specific acts of harassment, including dates. A series of acts means at least two. In both petitions, the court will consider acts committed within the last year. If the defendant requests a hearing, you will be limited to the allegations in your petition. Therefore, it is very important to include every incident of domestic violence that has occurred in the past year.
c. Individual Hearing and Issuance of the Order
After you have filled out and filed your petition, the judge will hold an individual hearing to determine whether the order should be issued. The defendant is not present at this hearing. For an Order of Protection, the judge must find reasonable cause to believe that the defendant may commit an act of domestic violence or has committed an act of domestic violence within the last year to grant the Order. For an Injunction Against Harassment, the judge must find reasonable evidence that the defendant has committed a series of acts of harassment against the plaintiff in the last year, or find that good cause exists to believe that the plaintiff will suffer great or irreparable harm if the Injunction is not granted. If you seek to add other people to your petition, the court must make separate reasonable cause determinations for each person. If the required findings are made, the judge issues the order. If the judge does not have enough information to issue the order, he or she may deny your request or set a pre-issuance hearing within ten (10) days and provide notice to the defendant.
Serving the Order (Effective upon service, how to serve, Duration)
Your protective order has been issued, now what? The order, with a copy of the petition, must be served on the defendant to become effective. Service is most often completed by hiring a private process server or utilizing the Maricopa County Sheriff’s Department. You may not serve the order yourself. The order must be served on the defendant within one year from the date that the judge issued the order. Additionally, an Order of Protection is effective for two (2) years from the date the defendant was served (if served after September 24, 2022), and an Injunction Against Harassment is effective for one (1) year from the date the defendant was served.
Once the defendant is served, you have an enforceable order and the police have the authority to arrest the defendant for violating the order. At any point during the term of the order, the defendant may request a hearing. A hearing will be set within ten (10) days of the request, or within five (5) days of the request if the Order excludes the defendant from a residence shared with the plaintiff (you). At the contested hearing, you must prove by a preponderance of the evidence that the allegations you made in your petition are true. This standard is more difficult to meet than the standard you met to obtain your order, and therefore consulting with an attorney as early as possible is a very good idea.
