Indiana Civil Protective Order Act

July 2012

What It’s All About?

1

Conduct Required and Petitioner Domestic or family violence Stalking Sex Offense

Petitioner Person seeks protection for him/herself because of :

“domestic or family violence,” “stalking” under Ind. Code § 35-45-10-5, or a “sex offense” under Ind. Code § 35-42-4 against the petitioner.

Ind. Code § 35-26-5-2

2

Respondents

A “family or household member” who committed acts of “domestic or family violence” against the Petitioner

Anyone (whether or not a “family or household member”) who “stalked” the Petitioner

Anyone (whether or not a “family or household member”) who committed a sex offense against the Petitioner

3

“Family or Household Member” Is a current or former spouse of the other person Is dating or has dated the other person Is engaged or was engaged in a sexual

relationship with the other person Is related by blood or adoption to the other

person Is or was related by marriage to the other person Has or previously had an established legal

relationship with the Petitioner as a guardian, ward, custodian, foster parent, or a capacity similar to any of these

Has a child in common with the other person or Has adopted a child of the other person

Ind. Code § 34-6-2-45 4

“Domestic or Family Violence” Acts of “domestic or family violence” by a “family or

household member” (except for self-defense): Attempting or threatening to cause, or causing

physical harm to another family or household member.

Placing another family or household member in fear of physical harm.

Causing a family or household member to involuntarily engage in sexual activity by force, threat of force or duress.

Beating, torturing, mutilating or killing an animal with intent to threaten, intimidate, harass, etc. a family member

Stalking and a sex offense, even if not committed by a family or household member. Ind. Code § 34-6-2-34.5 5

“Stalking” and “Sex Offense” Defined in Ind. Code § 35-45-10-1 Knowing or intentional “course of conduct” Involves repeated or continuing “harassment” of

another person Would cause a reasonable person to feel

terrorized, frightened, intimidated or threatened and

Actually causes victim to feel terrorized, frightened, intimidated or threatened

“Course of conduct” requires two or more incidents

Sex offense - Ind. Code § 35-42-4

6

Clerk’s Duties Ind. Code § 34-26-5-3 (d)-(g)

Provide assistance in reading or completing form and filing petition. Provide Instruction forms. Not practice of law.

Provide Petition, Confidential and all other forms

No filing fee Case filed in proper court according to

local filing rules Pending case involving Petitioner and

Respondent or child of Petitioner and Respondent—filed in that court 7

Petition for Protection Order Petition must allege domestic or family

violence occurred. Ind. Code § 34-26-5-9 (a). This includes domestic or family violence.

Petitions must be verified or under oath. Ind. Code § 34-26-5-3 (e).

All courts of record may issue Protection Order. Ind. Code § 34-26-5-4.

Parent, guardian or custodian may file petition on behalf of a child. Ind. Code § 34-26-5-2 (b) 8

Petition continued A petition must be filed in county where:

Petitioner currently or temporarily resides Respondent resides; or Where the domestic or family violence

occurred.

No minimum residency requirement to petition for a protection order. Ind. Code § 34-26-5-4

Must inform Prot. Order court of other court proceedings. Ind. Code § 34-26-5-5

9

Initiation of Case Judicial officer reviews Petition Judicial officer may swear in petitioner and take testimony if petition unclear Judicial officer issues or denies Ex Parte Order; or may issue order and set a hearing; or may issue order and transfer case to another court. Preparation and service of summons, order to appear or notice to appear Service of Protection Order important if Invasion of privacy case later.

10

1. Hearing Requirement: Post-Petition Hearing Not Required

No hearing required if the Petitioner and Respondent are not “intimate partners” as defined in 18 U.S.C. § 921(a)(32), and the Petition seeks only— To enjoin Respondent from threatening or

threatening to commit domestic or family violence, stalking or sex offenses

To prohibit harassing, annoying telephoning, contacting or direct or indirect communication

To require Respondent to stay away from designated premises (residence, school, employment or specified place)

Ind. Code § 34-26-5-9 (b) (1) (2) & (4) 11

2. Hearing Requirement: Ct. May Order, But Hearing Required in 30 Days

If the Petitioner and Respondent are “Intimate Partners”, or the Petition seeks and Ct. grants: Evicting the Respondent from the

Petitioner’s home, regardless of ownership. IC 34-26-5-9 (b) (3)

Ordering Respondent to give possession of any type of property [car, auto, personal effects] to Petitioner (title cannot be transferred) IC 34-26-5-9 (b) (5)

Ordering other relief needed to provide for safety. IC 34-26-5-9 (b)(6)

12

Hearing Requirement 3: Court May Order Only After Notice And A Hearing Order on parenting time (custody cannot

be awarded) to protect safety of child. IC 34-26-5-9 (c) (2)

Order to pay Attorney’s fees Rent or mortgage paymentsChild support Reimburse for medical expenses,

counseling, shelter and repairsCosts of bringing action

• IC 31-26-5-9 (c) (2) and (3) 13

3. Hearing Requirement: Court May Order Only After Notice And A Hearing

Prohibition against a respondent from using or possessing a firearm, ammunition or a deadly weapon specified by the court.

If the Respondent owns a firearm, ammunition or deadly weapon, order the respondent to surrender it to a specified law enforcement agency for the duration of the protection order, unless another date is ordered. IC 31-26-5-9 (c) (4)

Petitioner or Resp. requests hrg. within 30 days of Service of Petition. IC 31-26-5-10

If hearing held on any Prot. Order, a new order should be entered.

14

Brady Law Prohibition

“(f) A finding that domestic or family violence has occurred sufficient to justify the issuance of an order under this section means that a respondent represents a credible threat to the safety of a petitioner or a member of a petitioner's household. Upon a showing of domestic or family violence by a preponderance of the evidence, the court shall grant relief necessary to bring about a cessation of the violence or the threat of violence. The relief may include an order directing a respondent to surrender to a law enforcement officer or agency all firearms, ammunition, and deadly weapons:        (1) in the control, ownership, or possession of a respondent; or (2) in the control or possession of another person on behalf of a respondent;for the duration of the order for protection unless another date is ordered by the court. [emphasis added] Ind. Code § 34-26-5-9 (f)

15

Brady Prohibition Tracks Fed. Language

“credible threat” Burden of proof: Preponderance of the

evidence Mandatory with the court, and set up this

way in the Protection Order Registry Notice of this hearing very important Surrender of weapon procedures Cannot use Brady Prohibition on an Ex

Parte Order. Why?

16

Length of Protection Order Effective for two (2) years after the date of

issuance unless another date is ordered by the court. IC 34-26-5-9 (e).

Includes Ex Parte and Protection Order issued after notice and a hearing.

Sheriff provides service for all protection orders.

Again, good service needed for Invasion of Privacy prosecution

17

Other Protection Order Rules

If Respondent is excluded from residence of Petitioner, invitation by Petitioner does not waive order IC § 34-26-5-11

No statute of limitations based lapse of time between incident and filing of petition. IC § 34-36-5-13

No mediation permitted in these cases. IC § 34-26-5-15

Foreign Prot. Orders facial validity. IC § 34-26-5-11. May be placed in the registry.

18

Modification, Extension, Termination and Reinstatement

Petition can be modified any time before or after hearing (modification may require a new hearing) IC § 34-26-5-9

Petition can be terminated at any time by Petitioner’s dismissal or court’s denial of Ex Parte Order or Order of Protection after a hearing.

Time period set by Order may be extended. Is notice of extension required?

19

No Contact Orders1. IC § 31-32-13 “Generic” Juvenile Court Order

2. IC § 31-34-20 CHINS

3. IC § 31-34-25 CHINS

4. IC § 31-37-19 Delinquency

5. IC § 31-37-25 Delinquency

6. IC § 33-39-1-8 Pretrial Diversion

7. IC § 35-33-8-3.2 Pretrial Release/Bail and Recogniz.

8. IC § 35-33-8-3.6 Pretrial Release/No Hrg/10 day

9. IC § 35-38-1-30 Executed sentence

10. IC § 35-38-2-2.3 Probation 20

Enforcement and Conclusion Indirect civil contempt is available to

enforce (Respondent entitled to counsel)

Invasion of privacy may be used to enforce protection order.

Are a valuable tool to reduce domestic or family violence, stalking and sex offenses

Have to be used in conjunction with criminal prosecution and rigorous police enforcement of protective orders

21