A Judge’s Guide: Best Practices for Protective Orders · 2014-06-27 · A Judge’s Guide: Best Practices for Protective Orders A Companion for the Domestic Violence Benchbook Arizona

A Judge’s Guide: Best Practices for Protective Orders

A Companion for the Domestic Violence Benchbook

Arizona Supreme Court Education Services Division

1501 W. Washington Phoenix, Arizona 85007

602.452.3060

Published August 2013

© 2013, Arizona Supreme Court Administrative Office of the Courts. All rights reserved.

This publication was supported by Grant No. 2011-WC-AX-0001 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.


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Table of Contents

I. A.R.S. 13-36.01 ........................................................................................................................ Page 3

II. Rule 6.11 .................................................................................................................................... Page 6

III. ARPOP ...................................................................................................................................... Page 7

IV. Brady Issues ............................................................................................................................ Page 27

V. Preserving Evidence .............................................................................................................. Page 37

VI. Issues of concerns .................................................................................................................. Page 38

a. Petition

b. Problems

c. Prompt Questions

d. Solutions

VII. Tips for Controlling Parties .................................................................................................. Page 53

VIII. Safety Plan ............................................................................................................................... Page 55

IX. Protective Order Forms ........................................................................................................ Page 58


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A.R.S. 13-3601

A.R.S. 13-3601. Domestic violence; definition; classification; sentencing option; arrest and procedure for violation; weapon seizure A. "Domestic violence" means any act that is a dangerous crime against children as defined in section 13-705 or an

offense prescribed in section 13-1102, 13-1103, 13-1104, 13-1105, 13-1201, 13-1202, 13-1203, 13-1204, 13-1302, 13-1303, 13-1304, 13-1406, 13-1502, 13-1503, 13-1504, 13-1602 or 13-2810, section 13-2904, subsection A, paragraph 1, 2, 3 or 6, section 13-2910, subsection A, paragraph 8 or 9, section 13-2915, subsection A, paragraph 3 or section 13-2916, 13-2921, 13-2921.01, 13-2923, 13-3019, 13-3601.02 or 13-3623, if any of the following applies:

1. The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household.

2. The victim and the defendant have a child in common. 3. The victim or the defendant is pregnant by the other party. 4. The victim is related to the defendant or the defendant's spouse by blood or court order as a parent,

grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law.

5. The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.’

6. The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship. The following factors may be considered in determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship:

(a) The type of relationship (b) The length of the relationship (c) The frequency of the interaction between the victim and the defendant (d) If the relationship has terminated, the length of time since the termination

B. A peace officer, with or without a warrant, may arrest a person if the officer has probable cause to believe that

domestic violence has been committed and the officer has probable cause to believe that the person to be arrested has committed the offense, whether the offense is a felony or a misdemeanor and whether the offense was committed within or without the presence of the peace officer. In cases of domestic violence involving the infliction of physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument, the peace officer shall arrest a person, with or without a warrant, if the officer has probable cause to believe that the offense has been committed and the officer has probable cause to believe that the person to be arrested has committed the offense, whether the offense was committed within or without the presence of the peace officer, unless the officer has reasonable grounds to believe that the circumstances at the time are such that the victim will be protected from further injury. Failure to make an arrest does not give rise to civil liability except pursuant to section 12-820.02. In order to arrest both parties, the peace officer shall have probable cause to believe that both parties independently have committed an act of domestic violence. An act of self-defense that is justified under chapter 4 of this title is not deemed to be an act of domestic violence. The release procedures available under section 13-3883, subsection A, paragraph 4 and section 13-3903 are not applicable to arrests made pursuant to this subsection.

C. A peace officer may question the persons who are present to determine if a firearm is present on the premises. On learning or observing that a firearm is present on the premises, the peace officer may temporarily seize the firearm if the firearm is in plain view or was found pursuant to a consent to search and if the officer reasonably believes that the firearm would expose the victim or another person in the household to a risk of serious bodily injury or death. A firearm that is owned or possessed by the victim shall not be seized unless there is probable cause to believe that both parties independently have committed an act of domestic violence.


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D. If a firearm is seized pursuant to subsection C of this section, the peace officer shall give the owner or possessor of the firearm a receipt for each seized firearm. The receipt shall indicate the identification or serial number or other identifying characteristic of each seized firearm. Each seized firearm shall be held for at least seventy-two hours by the law enforcement agency that seized the firearm.

E. If a firearm is seized pursuant to subsection C of this section, the victim shall be notified by a peace officer before

the firearm is released from temporary custody.

F. If there is reasonable cause to believe that returning a firearm to the owner or possessor may endanger the victim, the person who reported the assault or threat or another person in the household, the prosecutor shall file a notice of intent to retain the firearm in the appropriate superior, justice or municipal court. The prosecutor shall serve notice on the owner or possessor of the firearm by certified mail. The notice shall state that the firearm will be retained for not more than six months following the date of seizure. On receipt of the notice, the owner or possessor may request a hearing for the return of the firearm, to dispute the grounds for seizure or to request an earlier return date. The court shall hold the hearing within ten days after receiving the owner's or possessor's request for a hearing. At the hearing, unless the court determines that the return of the firearm may endanger the victim, the person who reported the assault or threat or another person in the household, the court shall order the return of the firearm to the owner or possessor.

G. A peace officer is not liable for any act or omission in the good faith exercise of the officer's duties under

subsections C, D, E and F of this section.

H. Each indictment, information, complaint, summons or warrant that is issued and that involves domestic violence shall state that the offense involved domestic violence and shall be designated by the letters DV. A domestic violence charge shall not be dismissed or a domestic violence conviction shall not be set aside for failure to comply with this subsection.

I. A person who is arrested pursuant to subsection B of this section may be released from custody in accordance with

the Arizona rules of criminal procedure or any other applicable statute. Any order for release, with or without an appearance bond, shall include pretrial release conditions that are necessary to provide for the protection of the alleged victim and other specifically designated persons and may provide for additional conditions that the court deems appropriate, including participation in any counseling programs available to the defendant.

J. When a peace officer responds to a call alleging that domestic violence has been or may be committed, the officer

shall inform in writing any alleged or potential victim of the procedures and resources available for the protection of the victim including:

1. An order of protection pursuant to section 13-3602, an injunction pursuant to section 25-315 and an injunction

against harassment pursuant to section 12-1809. 2. The emergency telephone number for the local police agency 3. Telephone numbers for emergency services in the local community.

K. A peace officer is not civilly liable for noncompliance with subsection J of this section. L. If a person is convicted of an offense involving domestic violence and the victim was pregnant at the time of the

commission of the offense, at the time of sentencing the court shall take into consideration the fact that the victim was pregnant and may increase the sentence.

M. An offense that is included in domestic violence carries the classification prescribed in the section of this title in which the offense is classified. If the defendant committed a felony offense listed in subsection A of this section against a pregnant victim and knew that the victim was pregnant or if the defendant committed a felony offense causing physical injury to a pregnant victim and knew that the victim was pregnant, the maximum sentence otherwise authorized for that violation shall be increased by up to two years.


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N. When a peace officer responds to a call alleging that domestic violence has been or may be committed, the officer must determine if a minor is present. If a minor is present, the peace officer must conduct a child welfare check to determine if the child is safe and if the child might be a victim of domestic violence or child abuse.


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Rules of Court 6.11 Arizona Rules of Evidence, Rule 611 Arizona Revised Statutes Annotated Currentness Rules of Evidence for Courts in the State of Arizona (Refs & Annos) Article VI. Witnesses (Refs & Annos) Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.

(b) Scope of cross-examination. A witness may be cross-examined on any relevant matter. (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.


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Arizona Rules of Procedure for Protective Orders (ARPOP) For an electronic link to ARPOP, go to http://www.azcourts.gov/Portals/74/CIDVC/ARPOP.pdf

17B A.R.S. Rules Protect.Ord. Proc., Rule 1 Rule 1. General Administration

A. Applicability of Rules

1. Scope of these Rules. These rules govern the procedures in any Arizona court in all cases related to the issuance of an Order of Protection See A.R.S. § 13-3602, an Emergency Order of Protection See A.R.S. § 13-3624(C), an Injunction Against Harassment See A.R.S. § 12-1809, and an Injunction Against Workplace Harassment See A.R.S. § 12-1810. 2. Applicability of Other Rules. To the extent not inconsistent with these rules, the Arizona Rules of Family Law Procedure (ARFLP) shall apply to protective order matters heard in conjunction with pending family law cases. In all other cases, the Arizona Rules of Civil Procedure shall apply when not inconsistent with these rules.

B. Definitions

1. Parties

a. Defendant. The defendant is the person against whom the plaintiff or other appropriate party is seeking protection. b. Plaintiff and Other Appropriate Requesting Parties.

1) Plaintiff. The plaintiff is the person or other appropriate requesting party who files the petition for a protective order. 2) Other Appropriate Requesting Parties.

a) Parent, Legal Guardian, or Legal Custodian of Minor. If the person in need of protection is a minor, then the parent, legal guardian or person who has legal custody of the minor shall file the petition unless the court determines otherwise. The petition shall name the parent, guardian, or custodian as the plaintiff, and the minor as a specifically designated person. b) Third Party on Behalf of a Person Unable to Request an Order. If a person is either temporarily or permanently unable to request an order, a third party may request an order of protection on behalf of the plaintiff. After the request, the judicial officer shall determine if the third party is an appropriate requesting party for the plaintiff. See A.R.S. § 13-3602(A). c. Protected Persons. Protected persons are other specifically designated persons who the court has determined should be included in the Order. d. Victim. As used in these rules, the term “victim” is used interchangeably with “plaintiff.”

2. Protective Orders. As used in these rules, “Protective Orders” include the following:

a. Emergency Order of Protection. An Emergency Order of Protection is governed by A.R.S. § 13-3624(C) and may be requested by a peace officer on an emergency or ex parte basis when a person's life or health is in imminent danger; it is limited to parties with specified relationships between them.


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b. Injunction Against Harassment. An Injunction Against Harassment is governed by A.R.S. § 12-1809 and may be granted to prevent a person from committing acts of harassment against another. There is no relationship requirement. c. Injunction Against Workplace Harassment. An Injunction Against Workplace Harassment is governed by A.R.S. § 12-1810 and authorizes an employer to seek a court order preventing a person from being on the premises of the employer and from committing acts of harassment against the employer, the workplace, the employer's employees or any other person who is on or at the employer's property or place of business or who is performing official work duties. d. Order of Protection. An Order of Protection is governed by A.R.S. § 13-3602 and may be granted at the request of a person to prevent another person from engaging in certain activity; it is limited to parties with specified relationships between them.

C. Access to the Courts and Protective Order Case Information

1. All limited and general jurisdiction courts shall be available during normal operating hours to issue and enforce protective orders, regardless of the residence of the parties. See A.R.S. §§ 13-3602, 12-1809 and 12-1810. For emergency orders of protection after normal operating hours, see Rule 6(D). 2. A plaintiff may file a petition for a protective order with any municipal, justice or superior court judicial officer. However, courts located within one mile proximity may enter into agreements designating a principal court for issuance of protective orders. If such courts enter into an agreement, the referring court shall provide written or verbal information and directions regarding the designated court and, prior to referral, shall ensure that the designated court is open to issue an order that day. If the court designated in the agreement is not available to issue orders, the referring court shall conduct the individual hearing with the plaintiff. 3. A court having only a part-time judicial officer shall provide coverage for the court, or court staff should direct a person requesting a protective order to the appropriate court location, after ensuring a judicial officer is available. 4. No limited or general jurisdiction court shall refuse a person's request to file a petition for a protective order even if that particular court does not normally issue protective orders. 5. No protective order shall be denied on the basis of immigration status. See 18 USC §§ 2261 and 2262. 6. For as long as a plaintiff has the ability by law to have a protective order served or unless otherwise ordered by the court, the court shall not make publicly available any information regarding the filing of or contents of a petition for or issuance of a protective order until proof of service of the protective order has been filed with the court. The court may share information about the protective order with the plaintiff, prosecutors, or with law enforcement.

D. Court Security. The court shall ensure that the parties are treated with fairness, respect and dignity and are free from intimidation, harassment or abuse during the court process.

1. At all stages of proceedings involving protective orders, the court shall maintain appropriate security for the parties and court personnel. 2. Before, during and immediately after any court proceeding, the court shall provide appropriate safeguards to minimize the contact that occurs between the parties, their immediate families and witnesses. 3. The court may request that a law enforcement officer, if available, be present in the courtroom during the hearing or to escort a party to or from the courtroom. 4. Following a hearing, the court may direct the defendant to remain in the courtroom for a period of time after the plaintiff is excused.

E. Alternative Dispute Resolution

1. The parties in a proceeding for an Order of Protection shall not be referred to mediate that Order of Protection.


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2. If the court determines alternative dispute resolution (ADR) is appropriate in a protective order case that is not an Order of Protection, the court may refer the case to ADR. The court shall assure policies are in place to protect the parties from harm, harassment or intimidation during ADR. 3. Prior to the commencement of ADR, every party shall be notified in writing or orally in open court of the ability to request to opt out of ADR or to request that reasonable procedures for protection of the parties are in place during ADR, as determined by the court. Neither party shall be required to appear for ADR pending determination of this matter. 4. An ADR provider shall reject or terminate ADR whenever the provider determines ADR is inappropriate because of domestic violence or harassment.

F. Children as Protected Persons. No judicial officer has the authority to include a child of the defendant in a protective order unless there is reasonable cause to believe:

1. Physical harm has resulted or may result to the child, or 2. The alleged acts of domestic violence involved the child.

G. Mutual Protective Orders Prohibited. The issuance of mutual protective orders within the same cause number is prohibited. A judicial officer shall not grant a mutual protective order. A judicial officer shall not issue a protective order that restricts the conduct of the plaintiff based on the plaintiff's own petition. Where each party has separately petitioned the court for a protective order, a judicial officer may grant separate protective orders based upon findings that each petitioning party is entitled to protection and makes findings of fact indicating that the respondents in each of those actions acted primarily as aggressors and not in self-defense. H. Cross Petitions. Any defendant in an Order of Protection or Injunction Against Harassment case may file a petition for an Order of Protection or Injunction Against Harassment against the plaintiff.

1. The cross petition shall be regarded as a separate action. The cross petition may be assigned a new case number or a case number associated with a pending family law case in superior court. 2. The cross petition shall request the appropriate relief. 3. When a cross petition is filed, the judicial officer shall apply the same statutory standards for issuing an Order of Protection or Injunction Against Harassment. See A.R.S. §§ 13-3602(H) or 12-1809(G). 4. If opposing parties file separate petitions for an Order of Protection or Injunction Against Harassment, after consultation, the judicial officers involved may consolidate the petitions of the opposing parties for hearing. This does not prohibit the judicial officer from issuing cross Orders of Protection or Injunctions Against Harassment. 5. A judicial officer shall not issue an Order of Protection or Injunction Against Harassment that restricts the conduct of the plaintiff.

I. Multiple Orders, Cross Orders and Conflicting Orders

1. When parties have sought and obtained conflicting protective orders, both orders are to be given full force and effect, without regard to whether the orders were issued by courts of limited or general jurisdiction.

a. Prior to the issuance of a protective order, the judicial officer shall examine all available records and question the plaintiff to determine whether any other protective order affecting the parties has been issued or served. b. If an earlier order exists, the judicial officer shall schedule a pre-issuance hearing with notice to both parties, unless the judicial officer determines after reviewing all available records and questioning the plaintiff, that failure to issue the ex parte protective order would likely result in imminent danger to the plaintiff or protected party(ies). See ARS §§ 13-3602(E) and 12-1809(E).

c. If different judicial officers issue protective orders that grant conflicting relief involving the same parties, these orders shall be set for hearing within five days after the judicial officers discover the conflict. The judicial officers who issued the conflicting orders shall consult with each other and combine the cases in one jurisdiction to resolve the orders that conflict. In the event of conflicting limited jurisdiction orders, there shall be a


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presumption that the hearing to resolve the conflicting orders shall be conducted in the court where the first petition was filed. In all other cases, the conflicting orders shall be heard in superior court. See A.R.S. § 13-3602(H).

2. When issuing a protective order, either in an ex parte proceeding or contested hearing, the judicial officer shall inquire about the existence of any custody order or parenting plan to avoid entering a protective order that inadvertently conflicts with the current parenting plan. If a protective order conflicts with a prior child custody order, the protective order controls until further order of a court.

J. Transfer of Protective Orders. The originating court transferring a protective order shall within 24 hours notify its sheriff's office in writing of the transfer and update information in that court's protective order repository. K. No Limit on Number of Protective Orders. There is no limit on the number of times a party may request a protective order.

1. The number of times a protective order has been dismissed does not provide a basis for denying a request for protective relief. Each time a petition for protective relief is filed, the judicial officer must make an independent determination whether there is reasonable cause under the applicable protective order statute. See A.R.S. §§ 13-3602(E), 12-1809(E) and 12-1810. 2. The plaintiff may file a petition for another protective order if protection is still required after the expiration of the current protective order. There is no statutory limit on the number of protective orders that may be granted.

L. Record of Hearings. Judicial officers shall cause all contested protective order hearings and, where practicable, ex parte hearings, to be recorded electronically or by court reporter. If a contested hearing is not electronically recorded or otherwise reported, an appeal from such a hearing will result in an automatic new hearing at the original trial court. M. Service of Protective Orders. A protective order shall be served by a person authorized by Rule 4(d), Ariz. R. Civ. P., A.R.S. §§ 13-3602(R), 12-1809(Q) or 12-1810(Q) or as otherwise provided in this rule. A protective order expires if it is not served upon the defendant, together with a copy of the petition, within one year from the date that the judicial officer signs the protective order. See A.R.S. §§ 13-3602(L), 12-1809(J) and 12-1810(I).

1. There is no requirement that the copy of the order served on the defendant be certified. 2. An initial or modified protective order is effective upon serving the defendant with a copy of the order and the petition; such order expires one year after service of the initial order. 3. A defendant may sign an acceptance of service form, which has the same effect as service. If the defendant refuses to sign an acceptance of service form, the judicial officer may have the defendant served in open court. Any modified order must be served by a person authorized to serve process or the defendant must sign the acceptance of service for the modified order to be in effect. In superior court, the minute entry shall reflect what method of service was utilized. See A.R.S. § 13-3602(R). 4. If the defendant is present in court and refuses to sign an acceptance of service form, the judicial officer shall have the defendant served in open court by a person specially appointed by the court. Such a judicial appointment to effectuate service may be granted freely, is valid only for the service of the protective order or modification entered in the cause and does not constitute an appointment as a registered private process server. A specially appointed person directed to serve such process shall be a court employee who is not less than twenty-one (21) years of age and shall not be a party, an attorney, or the employee of an attorney in the action whose process is being served. If such an appointment is entered on the record, no signed order shall be required provided a minute entry issues that reflects the special appointment and the nature of service. 5. The original affidavit of service, acceptance of service or return of service shall be promptly filed with the clerk of the issuing court. If mailed, such proof of service must be postmarked no later than the end of the seventh court business day after the date of service. Such proof of service may be submitted by facsimile, provided the original affidavit, acceptance of service or return of service is promptly filed with the court. See A.R.S. §§ 13-3602(M), 12-1809(K) and 12-1810(J). 6. If a defendant is physically present with the plaintiff and has not yet been served, a peace officer may be summoned to the scene and may use the plaintiff's copy of the protective order to effect service on the defendant.


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7. Any modified order must be served by a person authorized to serve process or the defendant must sign the acceptance of service or be otherwise served as provided in subdivision 4 for the modified order to be in effect.

N. Information for Parties. This paragraph is intended to provide information to the parties.

1. The plaintiff should provide copies of any protective order to third parties, such as employers, apartment managers, schools, security personnel and law enforcement in other jurisdictions. 2. A protective order does not guarantee personal safety, and the plaintiff or appropriate third party must take any other necessary precautions to ensure safety. 3. Any violation of a protective order should be reported immediately to law enforcement. 4. A protective order is not valid against third parties such as landlords, which means when the plaintiff is granted exclusive use of the apartment where the parties reside, a landlord may not be required to honor the plaintiff's occupancy if the plaintiff is not a leaseholder. 5. Each party should carry a copy of the protective order at all times. Although not required, plaintiff should also consider carrying a copy of proof of service of the protective order. 6. The parties may obtain further information from the Plaintiff's Guide Sheet for Protective Orders and Defendant's Guide Sheet for Protective Orders.

O. Registration of Protective Order and Affidavit, Acceptance or Return of Service. Each issuing court shall within 24 hours of receipt of the proof of service, forward a copy of the protective order and proof of service to the sheriff's office in the county in which the protective order was issued, for registration by the sheriff. See A.R.S. §§ 13-3602(M), 12-1809(K) and 12-1810(J).

1. The sheriff of each county is required to maintain a central repository for Orders of Protection so that the validity of a protective order may easily be verified. See A.R.S. §§ 13-3602(M), 12-1809(K) and 12-1810(J). 2. Within 24 hours after entry, notice of modification or dismissal of a protective order shall be sent to the sheriff in the county where the original protective order was registered. The modification or dismissal order shall be in writing and sent electronically via facsimile or e-mail, not by telephone, to the sheriff. 3. A protective order, whether or not registered, is a valid order of the court for a period of one year from the date of service.

P. Offender Treatment Programs

1. The judicial officer may require the defendant to complete a domestic violence offender treatment program, also known as a Batterer Intervention and Prevention Program, only after notice and a hearing at which the defendant has an opportunity to participate. See A.R.S. § 13-3602(G)(5). 2. The judicial officer may obtain reports that track enrollment in and offender compliance with program requirements from the domestic violence offender treatment program staff. If the judicial officer does not receive the above mentioned reports, the judicial officer may contact the program to request these reports. 3. If a superior court judicial officer becomes aware that the defendant has failed to comply with the order to complete a domestic violence offender treatment program, the judicial officer may set the matter for an Order to Show Cause hearing in addition to referring the matter to an appropriate law enforcement agency. See A.R.S. § 13-3602(N).

Q. Change of Address. Each party shall report any change of address or telephone number to the court, in order to permit notification of any scheduled hearing. If the plaintiff's address and telephone number are protected, any changes shall also be protected. R. Telephonic/Video Conference Proceedings

1. Upon request of a party or witness, or on its own motion, and upon finding that no substantial prejudice will be caused to any party by allowing telephonic or video conference testimony, the court may allow a party or witness to give testimony


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at any evidentiary hearing or trial, telephonically or by video conference, if the court finds, as to a party, that a party is reasonably prevented from attending the hearing or trial and the court finds, as to a witness, that the witness is either, a) reasonably prevented from attending the hearing or trial; b) would be unduly inconvenienced by attending the hearing or trial; or c) attendance in person at hearing or trial would be a burdensome expense to either the witness or a party. 2. Any documents a party wishes to introduce into evidence through a party or witness appearing telephonically or by video conference shall, where practicable, be provided in advance to the party or witness.

CREDIT(S) Added Sept. 5, 2007, effective Jan. 1, 2008. Amended Sept. 16, 2008, effective Sept. 26, 2008. Adopted on a permanent basis effective Sept. 3, 2009. Amended Aug. 30, 2012, effective Jan. 1, 2013.

COMMITTEE COMMENTS

Rule 1(A). These rules contain statutory references that may change from time to time, but the Committee determined it would be helpful to include the specific statutory references upon which the rules are based. Whenever the word “See” precedes a statutory reference in these rules, this means the cited statute directly supports the preceding text of the rule. Rule 1(B)(1)(d). Crime Victims' Rights arise on the arrest or formal charging of the person or persons who are alleged to be responsible for a criminal offense against a victim. See A.R.S. § 13-4402(A). Rule 1(C)(5). Immigrants and their children need and are entitled to the full protection of the law, including orders of protection, regardless of status. A denial of a protective order would be considered discrimination based on national origin which is specifically prohibited by law. See 18 USC §§ 2261 and 2262. Rule 1(E). Matters other than family or domestic violence may be appropriate for alternative dispute resolution. These controversies should be considered separate from domestic and family violence issues. Recognizing that matters of domestic violence may impact the alternative dispute resolution, it is important that victims of domestic violence have an opt-out prerogative. The Mediation and Domestic Violence Policy Adopted by the American Bar Association House of Delegates in July 2000, states: “RESOLVED, That the American Bar Association recommends that court-mandated mediation include an opt-out prerogative in any action in which one party has perpetrated domestic violence upon the other party.” Rule 1(F). A protective order shall never be used as a way to modify, amend, affect or diminish the parents' rights to custody, parenting time or access to children as previously granted in a custody decree or a parenting time order from a court of competent jurisdiction, unless the judicial officer makes either of the findings listed in subdivisions (1) and (2) of this paragraph. Under the Violence Against Women Act III (VAWA III), foreign Orders of Protection that include child custody and/or child support do qualify for enforcement through the full faith and credit provision. See 18 U.S.C. § 2265. Rule 1(G). States that issue mutual protective orders may be at risk of losing federal funding. See Violence Against Women Act III, 42 U.S.C. § 379.6 (1994). Rule 1(M). The defendant shall be personally served because 1) personal service on the defendant satisfies the criminal notice requirement if a violation of the protective order is prosecuted under criminal statutes, and 2) unless the affidavit of service, acceptance of service or return of service shows personal service on the defendant, many sheriffs' offices, which are the holders of record, will not accept a protective order for purposes of Law Enforcement Protective Order Repository (LPOR)/National Crime Information Center (NCIC) entry. Rule 1(P). Before ordering defendants to domestic violence offender treatment programs, judicial officers shall review the information in Domestic Violence Offender Treatment Programs and Offender Accountability, noting especially that anger management programs and couple's counseling are not substitutes for domestic violence offender treatment programs. A list of Licensed Behavioral Health Facilities that provide Misdemeanor Domestic Violence Treatment Programs can be found by calling (602) 364-2595 or contacting the Arizona Department of Health Services, Division of Licensing Services, Office of Behavioral Health Licensing.


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17B A.R.S. Rules Protect.Ord. Proc., Rule 2 Rule 2. Fees and Costs

Arizona Revised Statutes Annotated Currentness

Arizona Rules of Protective Order Procedure Rule 2. Fees and Costs

A. Notice to Parties. The court shall provide notice to the parties of the filing and service fees listed below. See A.R.S. §§ 12-284, 12-1810, 12-2107, 22-281 and 22-404.

1. Filing fees:

a. Petition for or Request to Modify Order of Protection/Injunction Against Harassment--no fee b. Petition for Injunction Against Workplace Harassment--fee pursuant to A.R.S. §§ 12-1810 and 12-284(A) c. Petition to Request a Hearing for Order of Protection/Injunction Against Harassment/Injunction Against Workplace Harassment--no fee d. Motion to Quash or Dismiss Order of Protection/Injunction Against Harassment--no fee e. Motion to Quash or Dismiss Injunction Against Workplace Harassment--no fee f. Notice of Appeal of Order of Protection/Injunction Against Harassment and Answer--no filing fee, but a party may be charged the cost of preparing the record. g. Notice of Appeal of Injunction Against Workplace Harassment--fee pursuant to A.R.S. § 12-284(A)

2. Service fees:

a. Order of Protection--no fee if served through any court contracted agency or law enforcement. A.R.S. § 13-3602(D) b. Injunction Against Harassment involving a dating relationship--no fee if served through any court contracted agency or law enforcement. A.R.S. § 12-1809(D) c. Injunction Against Harassment not involving a dating relationship--fee determined by the serving agency A.R.S. § 12-1809(D) d. Injunction Against Workplace Harassment--fee determined by the serving agency A.R.S. § 12-284(A)

B. Fee Deferrals and Waivers.

1. A judicial officer may defer or waive any of the fees listed above. See A.R.S. § 12-302. A judicial officer shall not require the plaintiff to perform community service as a condition to the waiver or deferral of these fees. If any filing or service fees have not been waived, they may be assessed against the plaintiff. 2. A law enforcement agency or constable is prohibited from requiring the advance payment of fees for service of process of Injunction Against Harassment not involving a dating relationship. See A.R.S. § 12-1809(D). Court personnel shall not collect advance payment on behalf of the serving agency.

C. Costs and Attorneys' Fees. Costs of the action, including attorneys' fees, may be assessed against any party.

1. After a hearing with notice to the affected party, a judicial officer may order any party to pay the costs of the action, including reasonable attorneys' fees, if any. See A.R.S. §§ 13-3602(P), 12-1809(N) and 12-1810(N).


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2. In determining whether to award costs and/or attorneys' fees, considerations include:

a. The merits of the claim or defense asserted by the unsuccessful party, b. Whether the award would pose an extreme hardship to the unsuccessful party, and c. Whether the award may deter others from making valid claims.

CREDIT(S) Added Sept. 5, 2007, effective Jan. 1, 2008. Amended Sept. 16, 2008, effective Sept. 26, 2008. Adopted on a permanent basis effective Sept. 3, 2009.

COMMITTEE COMMENTS

Rule 2(A). The notice of filing and service fees referenced in Rule 2 may be found in the Plaintiff's Guide Sheet for Protective Orders approved by the Arizona Supreme Court. Rule 2(B). Standards for fee deferrals and waivers may be found in the Arizona Code of Judicial Administration § 5-206: Fee Deferrals and Waivers.

17B A.R.S. Rules Protect.Ord. Proc., Rule 3 Rule 3. Protected and Unpublished Addresses


Arizona Rules of Protective Order Procedure Rule 3. Protected and Unpublished Addresses

A. Confidentiality of Plaintiff's Address. At the ex parte hearing, the judicial officer shall inquire whether the plaintiff's address should be protected from disclosure.

1. The plaintiff's address shall be protected only if it is unknown to the defendant. See A.R.S. § 13-3602(C)(1). 2. The judicial officer shall verify that the plaintiff's protected address does not appear on the petition and protective order and shall avoid stating the address on the record.

B. Continuing Duty to Provide the Clerk with Current Address. Any person whose address is ordered protected from disclosure under this rule shall have a continuing duty to provide the clerk of the court with a current and correct mailing address where the person can be served.


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17B A.R.S. Rules Protect.Ord. Proc., Rule 4 Rule 4. Family Law Cases


Arizona Rules of Protective Order Procedure Rule 4. Family Law Cases

A. Jurisdiction

1. A limited jurisdiction court shall not issue a protective order if the petition or plaintiff's statement reveals that an action for maternity, paternity, annulment, custody, dissolution of marriage or legal separation is pending in Arizona Superior Court. 2. If a family law action is pending in the superior court, the superior court has exclusive jurisdiction to issue the protective order. As a result, a limited jurisdiction court shall refer such plaintiff to the superior court. An action is considered to be pending if either:

a. an action has been commenced but no final judgment, decree or order has been entered; or b. a post-decree proceeding has been commenced, but no final order determining that proceeding has been entered. See A.R.S. § 13-3602(P).

3. No protective order is invalid or ineffective merely because a judicial officer of a limited jurisdiction court issued it when an action for maternity or paternity, annulment, legal separation, or dissolution of marriage was pending in superior court. 4. If, after issuance of a protective order, the limited jurisdiction court is notified in writing or verifies that a family law action is pending, all documents relating to the protective order promptly shall be transferred to the superior court.

a. Within 24 hours of the notification, all papers, together with a certified copy of docket entries or other records shall be transferred to the superior court where the action is pending. If the Certificate of Service arrives after the protective order is transferred to the superior court, the Certificate of Service shall immediately be sent to the superior court. b. Notwithstanding this transfer requirement, unless prohibited by a superior court order, a limited jurisdiction court may hold a hearing on all matters relating to an ex parte protective order if the hearing was requested before receiving written notice of the pending superior court action. c. If a hearing has been requested in a transferred case, the superior court shall hold the hearing within five court business days if exclusive use of the home is involved and within 10 court business days for all other cases. This time period commences on the date the transferred protective order is filed with the receiving court.

5. Only the juvenile division of the superior court may issue a protective order against a person under 12 years of age. See A.R.S. §§ 13-3602(B) and 12-1809(B).

B. Child Custody and Parenting Time

1. Except as otherwise provided in this rule, a protective order shall not contain provisions regarding child custody or parenting time issues. Legal issues, such as maternity, paternity, child support, custody, parenting time, dissolution of marriage or legal separation, may only be addressed by the superior court in a separate action under Title 25 of the Arizona Revised Statutes. 2. An Order of Protection may restrain the defendant from contacting or coming near specifically designated persons. See A.R.S. § 13-3602(G)(3). 3. If there is no legal relationship between the defendant and the child, the judicial officer, upon request, may prohibit the defendant's contact with the child based on danger to the plaintiff.


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4. Before granting a protective order prohibiting contact with a child with whom the defendant has a legal relationship, the judicial officer shall consider the following factors:

a. Whether the child may be harmed if the defendant is permitted to maintain contact with the child. b. Whether the child may be endangered if there is contact outside the presence of the plaintiff.

5. a. No protective order issued by a limited jurisdiction court that prohibits contact with the plaintiff shall include exceptions that allow the defendant to come near or contact the plaintiff in person for child custody or parenting time with the children. Limited jurisdiction courts may allow contact by mail or e-mail for the purpose of arranging parenting time and may provide for child exchanges under circumstances not involving contact with the plaintiff in person.

b. When a family law action is not pending, but there is an active custody order issued by an Arizona court involving the defendant or a child of the defendant, a limited jurisdiction court may issue an ex parte protective order, but then shall transfer the matter to the superior court in accordance with the procedures set forth in Rule 4(A)(4).

6. a. A superior court judicial officer may issue an original protective order or modify an existing protective order that includes an exception allowing the defendant to come near or contact the plaintiff in person in order to implement a child custody order or parenting time order after giving consideration to the following factors and making specific findings on the record:

1) Alternatives regarding contact that are feasible to carry out the child custody order or parenting time order such as exchanges at a protected setting, public facility or other safe haven or through a third person; 2) The wishes of the parties; 3) Each party's history of domestic violence; 4) The safety of the parties and child or children; 5) The behavioral health of each of the parties; and 6) Reports and recommendations of behavioral health professionals.

b. Any modification made by a superior court judicial officer to an existing protective order shall be included in a modified protective order. Each modification shall be set forth in the modified protective order with sufficient detail to assure understanding and compliance by the parties and ease of enforcement by law enforcement officers. The superior court judicial officer shall obtain an acceptance of service signed by the defendant if the parties are present at the time the modification is made. If the defendant refuses to sign the acceptance of service, the judicial officer shall have the defendant served in open court in accordance with Rule 1(M)(4).

CREDIT(S) Added Sept. 5, 2007, effective Jan. 1, 2008. Amended Sept. 16, 2008, effective Sept. 26, 2008. Adopted on a permanent basis effective Sept. 3, 2009.

COMMITTEE COMMENT

Rule 4(B). When an action under Title 25 is pending, Family Law Judicial officers should refer to the options set forth in A.R.S. § 25-403.03(F), including supervised exchanges of parenting time, when a protective order is in effect.


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17B A.R.S. Rules Protect.Ord. Proc., Rule 5 Rule 5. Rules of Evidence and Disclosure for Protective Order Hearings


Arizona Rules of Protective Order Procedure Rule 5. Rules of Evidence and Disclosure for Protective Order Hearings

A. Admissible Evidence

1. All relevant evidence is admissible, except the court may exclude evidence if:

a. the probative value is outweighed by the danger of unfair prejudice; b. the evidence results in confusion of the issues; c. admitting the evidence may result in undue delay; d. a needless presentation of cumulative evidence would result, or e. the evidence lacks reliability.

2. Any report, document, or standardized form required to be submitted to the court may be considered as evidence if either filed with the court or admitted into evidence by the court.

B. Disclosure. The disclosure requirements set forth in Rule 26.1, Arizona Rules of Civil Procedure, and Rules 49 and 50, Arizona Rules of Family Law Procedure, do not apply to hearings on Orders of Protection, Injunctions Against Harassment and Injunctions Against Workplace Harassment, unless otherwise specifically ordered by the court. CREDIT(S) Added Sept. 5, 2007, effective Jan. 1, 2008.

COMMITTEE COMMENT

Rule 5(A)(1). This rule is intended to give the court broad discretion in determining whether proffered evidence shall be admissible in any individual protective order hearing. Rule 5(A)(2). This rule allows the court to consider as evidence at any stage of the proceedings any report or document ordered or required by the court to be submitted to the court, such as drug testing results and reports from Offender Treatment Programs, custody evaluators, Conciliation Services, Family Law Masters, Parenting Coordinators, and other court-appointed experts.


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17B A.R.S. Rules Protect.Ord. Proc., Rule 6 Rule 6. Rules of Procedure for Issuing Protective Orders


Arizona Rules of Protective Order Procedure Rule 6. Rules of Procedure for Issuing Protective Orders

A. Commencement of Proceedings. A party shall commence an action for a protective order by filing a verified petition with the clerk of the court. B. Priority for Protective Orders. A judicial officer shall expeditiously schedule an ex parte hearing for a protective order involving a threat to personal safety even if previously scheduled matters are interrupted. C. Order of Protection. The judicial officer shall conduct a separate hearing with each plaintiff who requests an Order of Protection.

1. Contents of Petition. The petition shall allege specific acts of domestic violence and name each individual the plaintiff believes should be included as a protected person. 2. Petition Verification. A plaintiff must sign and swear or affirm to the truth of the petition before a judicial officer or other person authorized to administer an oath. 3. Petition Review. A judicial officer shall review the petition, any other pleadings on file, and any evidence offered by the plaintiff, including any evidence of harassment by electronic contact or communication, to determine whether there is reasonable cause to believe that the defendant may commit an act of domestic violence or has committed such an act, and whether the order requested shall be issued ex parte. See A.R.S. § 13-3602(E).

a. Reasonable cause determination.

1) In determining reasonable cause, the judicial officer shall consider specific acts of domestic violence alleged within the past year, or within a longer period of time if the court finds good cause. Periods of the defendant's absence from the state or incarceration shall not be included in calculating the one year. See A.R.S. § 13-3602(C)(3), (E)(2) & (F). 2) A separate reasonable cause determination shall be made as to the plaintiff individually, any children with whom the defendant has a legal relationship and any other person listed in the petition. If a reasonable cause determination is made for the plaintiff, a separate reasonable cause determination is not required for the children with whom the defendant has no legal relationship.

b. Relationship Test.

1) The judicial officer must find that a specific relationship exists, either by statute, blood or marriage, between the plaintiff and the defendant. See A.R.S. § 13-3601(A). 2) Statutory relationships include:

a) persons who are residing or who have resided in the same household;

b) victim and defendant who have a child in common; c) victim or defendant who is pregnant by the other party; d) victim is a child who resides or has resided in the same household as the defendant, and

i) is related by blood to a former spouse of the defendant, or


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ii) is related by blood to a person who resides, or who has resided in the same household as the defendant , or

e) victim and defendant who currently share or previously shared a romantic or sexual relationship. In determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship, the court may consider the following factors:

i) the type of relationship. ii) the length of the relationship. iii) the frequency of the interaction between the victim and the defendant. iv) if the relationship has terminated, the length of time since the termination.

3) Blood relationships include victim related to the defendant or the defendant's spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister. 4) Marriage relationships include:

a) victim and defendant who are either married or who have been previously married; and b) victim who is related to the defendant or the defendant's spouse by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law, or sister-in-law. See A.R.S. § 13-3601(A).

5) The relationship test is also met when a plaintiff acts on behalf of a victim if any of the following apply:

a) the plaintiff is the parent, legal guardian or person who has legal custody of a minor or incapacitated person who is a victim, unless the court determines otherwise; or b) the victim is either temporarily or permanently unable to request an order. See A.R.S. § 13-3602(A).

4. Additional Review for Limited Jurisdiction Courts. The court shall inquire of the plaintiff whether a family law action is pending in the superior court and determine whether the court has jurisdiction pursuant to Rule 4(A). 5. Issuance of Order of Protection. An Order of Protection shall be issued ex parte if the judicial officer finds reasonable cause to do so as set forth in paragraph 3 above. At the initial ex parte hearing, the plaintiff or appropriate third party shall be provided with a copy of the Order of Protection, which may include any of the following provisions:

a. No Contact Orders. The judicial officer may prohibit all contact with the plaintiff or other protected parties, except as otherwise specifically ordered in writing by the court. See A.R.S. § 12-1809(F)(2). b. Exclusive Use of Residence. The judicial officer may grant plaintiff exclusive use of the parties' residence, if there is reasonable cause to believe that physical harm otherwise may result. See A.R.S. § 13-3602(G)(2). If the plaintiff is not the owner of the residence, the judicial officer may grant exclusive use for a limited period of time. At a contested hearing, the judicial officer may consider ownership of the parties' residence as a factor in continuing the order of exclusive use. The judicial officer may allow the defendant to return one time, accompanied by a law enforcement officer, to pick up personal belongings. c. Prohibited Locations. The judicial officer may also order that the defendant not go near the residence, place of employment or school of the plaintiff or other protected parties. The judicial officer may include other specifically designated location(s) in the Order. If the defendant does not know the address of these additional places, the judicial officer may, upon request of the plaintiff, leave the addresses protected. See A.R.S. § 13-3602(G)(3).


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d. Firearms and Ammunition.

1) The judicial officer shall ask the plaintiff about the defendant's use of or access to weapons or firearms. This inquiry shall be made to determine if the defendant poses a credible threat to the physical safety of the plaintiff or other protected persons. The judicial officer may, for the duration of the Order of Protection:

a) prohibit the defendant from possessing, purchasing or receiving firearms and ammunition; and b) order the defendant, immediately after service of the Order of Protection, to transfer any firearm or ammunition, owned or possessed, to the appropriate law enforcement agency. See A.R.S. § 13-3602(G)(4).

2) The plaintiff reporting violations of the order to transfer firearms and ammunition shall be referred to the appropriate law enforcement agency.

e. Other relief. The judicial officer may grant relief that is necessary for the protection of the plaintiff and other specifically designated persons and that is proper under the circumstances. f. Animals. The judicial officer may also grant the plaintiff the exclusive care, custody, or control of any animal that is owned, possessed, leased, kept, or held by the plaintiff, the defendant, or a minor child residing in the residence or household of the plaintiff or the defendant, and order the defendant to stay away from the animal and forbid the defendant from taking, transferring, encumbering, concealing, committing an act of cruelty or neglect in violation of Section 13-2910, or otherwise disposing of the animal.

6. Effectiveness of an Order of Protection. An Order of Protection is not in effect until it is served pursuant to Rule 1(L). See A.R.S. § 13-3602(D). 7. Denial of an Order of Protection. If after the ex parte hearing the judicial officer does not have sufficient information to grant the Order of Protection, the judicial officer may deny the request or set a hearing within 10 days with reasonable notice to the defendant. The judicial officer shall document any denial of an Order of Protection. See A.R.S. § 13-3602(F).

D. Emergency Orders of Protection

1. Authority to Issue an Emergency Order of Protection

a. In counties with a population of 150,000 or more, the presiding judge of the superior court in that county shall make available on a rotating basis a judge, justice of the peace, magistrate or commissioner to issue an Emergency Order of Protection by telephone during hours that the courts are closed. See A.R.S. § 13-3624(A). b. In counties with a population of less than 150,000, a judge, justice of the peace, magistrate or commissioner may issue an Emergency Order of Protection by telephone. See A.R.S. § 13-3624(B). c. The availability of an Emergency Order of Protection is not affected by either party leaving the residence. See A.R.S. § 13-3624(G).

2. Emergency Orders of Protection Issued Ex Parte

a. A judicial officer may issue a written or oral order if a law enforcement officer has reasonable grounds to believe that a person is in immediate and present danger of domestic violence based on an allegation of a recent incident of actual domestic violence. See A.R.S. § 13-3624(C). b. A judicial officer may issue a written or oral order upon the request of the alleged victim if there is a finding that a person's life or health is in imminent danger. See A.R.S. § 13-3624(F). c. A third party may request an emergency order on behalf of a plaintiff who is either temporarily or permanently unable to make the request. The judicial officer shall determine if the third party is an appropriate requesting party for the plaintiff. See A.R.S. § 13-3624(F).


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3. Issuance of an Emergency Order of Protection. An Emergency Order of Protection is issued for the protection of a person in immediate and present danger of domestic violence. See A.R.S. § 13-3624. An Emergency Order of Protection may:

a. Enjoin the defendant from committing an act of domestic violence. b. Grant one party exclusive use and possession of the parties' residence if there is reasonable cause to believe physical harm may otherwise result. c. Restrain the defendant from contacting the plaintiff or other specifically designated persons and coming near the residence, place of employment or school of the plaintiff or other designated persons, if there is reasonable cause to believe physical harm may otherwise result. d. Prohibit the defendant from possessing or purchasing a firearm and ammunition for the duration of the order, upon a finding that the defendant may inflict bodily injury or death on the plaintiff. See A.R.S. § 13-3624(D).

4. Service of an Emergency Order of Protection.

a. The law enforcement officer who receives verbal authorization for an Emergency Order of Protection shall complete and sign the emergency order as instructed by the judicial officer. The law enforcement officer shall then give a copy of the Emergency Order of Protection to the plaintiff or appropriate third party. b. The law enforcement officer shall arrange for service upon the defendant. After service of the Emergency Order of Protection on the defendant, the law enforcement officer shall file a certificate of service with the court and verbally notify the sheriff's office that a judicial officer has issued an Emergency Order of Protection. See A.R.S. § 13-3624(F).

5. Duration. An emergency order expires at the close of the next day of judicial business following the day of issuance, unless otherwise continued by the court. See A.R.S. § 13-3624(E). A petition for an Order of Protection may be filed the following business day.

E. Injunction Against Harassment. The judicial officer shall conduct an individual hearing with each plaintiff who requests an Injunction Against Harassment.

1. Contents of Petition. The petition shall allege a series of specific acts of harassment and the dates of occurrence. A series of acts means at least two events. See A.R.S. § 12-1809(C). 2. Petition Verification. A plaintiff must sign and swear or affirm to the truth of the petition before a judicial officer or other person authorized to administer an oath. 3. Petition Review. A judicial officer shall review the petition, any other pleadings on file and any evidence offered by the plaintiff, including any evidence of harassment by electronic contact or communication, to determine whether the order requested shall be issued ex parte. 4. Issuance of Injunction Against Harassment

a. Findings Required. The judicial officer shall issue an Injunction Against Harassment if there is a finding of reasonable evidence of harassment of the plaintiff by the defendant during the year preceding the filing or that good cause exists to believe that great or irreparable harm would result to the plaintiff if the injunction is not granted before the defendant or the defendant's attorney can be heard in opposition. See A.R.S. § 12-1809(E).

1) If the judicial officer is going to issue the Injunction Against Harassment at the ex parte hearing, the judicial officer must find specific facts attesting to the plaintiff's efforts to give notice to the defendant or reasons supporting the plaintiff's claim that notice should not be given. 2) If the judicial officer denies issuing an Injunction Against Harassment at an ex parte hearing, the judicial officer may set a hearing within 10 days with reasonable notice to the defendant.


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b. No Contact Orders. The judicial officer may prohibit all contact with the plaintiff or other protected parties, except as otherwise specifically ordered in writing by the court. See A.R.S. § 12-1809(F)(2).

c. Prohibited Locations. The judicial officer may also order that the defendant shall not go near the residence, place of employment or school of the plaintiff or other protected parties. The judicial officer may include other specifically designated location(s) in the Injunction Against Harassment. See A.R.S. § 12-1809(F)(2). d. Protected Persons. The judicial officer may grant relief that is necessary for the protection of the plaintiff and other specifically designated persons and that is proper under the circumstances. See A.R.S. § 12-1809(F)(3). e. Other Relief:

1) The judicial officer may grant relief necessary for the protection of the alleged victim and other specifically designated persons proper under the circumstances. A.R.S. § 12-1809(F)(3). 2) The judicial officer shall ask the plaintiff about the defendant's use of or access to weapons or firearms. The judicial officer may prohibit the defendant from possessing, purchasing or receiving firearms and ammunition for the duration of the Injunction Against Harassment.

5. Denial of an Injunction Against Harassment. If after the ex parte hearing the judicial officer does not have sufficient information to grant the Order of Protection, the judicial officer may deny the request or set a hearing within 10 days with reasonable notice to the defendant. The judicial officer shall document any denial of an Order of Protection. See A.R.S. § 13-3602(F).

F. Injunction Against Workplace Harassment. The judicial officer shall hold a hearing with each plaintiff/employer or authorized agent of the employer who requests an Injunction Against Workplace Harassment.

1. Contents of Petition. The petition shall allege at least one act of harassment and the dates of occurrence. See A.R.S. § 12-1810(C)(3). 2. Petition Verification. An employer or authorized agent must sign and swear or affirm to the truth of the petition before a judicial officer or other person authorized to administer an oath. 3. Petition Review. A judicial officer shall review the petition, any other pleadings on file and any evidence offered by the employer or authorized agent to determine whether the Injunction requested shall be issued ex parte. See A.R.S. § 12-1810(E). 4. Issuance of Injunction Against Workplace Harassment

a. The judicial officer shall issue an Injunction Against Workplace Harassment upon finding: 1) reasonable evidence of workplace harassment by the defendant during the year preceding the filing; or 2) good cause to believe that great or irreparable harm would result to the employer or other person who enters the employer's property or who is performing official work duties, if the injunction is not granted before the defendant or the defendant's attorney can be heard in opposition. b. The court must find specific facts attesting to the employer's efforts to give notice to the defendant or reasons supporting the employer's claim that notice should not be given. c. The judicial officer may prohibit all contact with the plaintiff or other protected parties, except as otherwise specifically ordered in writing by the court. See A.R.S. § 12-1809(F)(2). d. The judicial officer may grant relief that is necessary for the protection of the employer, employees or other persons who enter the employer's property and that is proper under the circumstances. e. If an Injunction Against Workplace Harassment is granted, the employer or authorized agent shall be provided with a conformed copy of the Injunction Against Workplace Harassment at the initial ex parte hearing.


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5. Denial of an Injunction Against Workplace Harassment. If after the ex parte hearing the judicial officer does not have sufficient information to grant the order, the judicial officer may deny the request or set a hearing within 10 days with reasonable notice to the defendant. The judicial officer shall document any denial of an order.

CREDIT(S) Added Sept. 5, 2007, effective Jan. 1, 2008. Amended Sept. 16, 2008, effective Sept. 26, 2008. Adopted on a permanent basis effective Sept. 3, 2009. Amended on an emergency basis effective Sept. 30, 2009. Amended June 30, 2010, effective on an emergency basis July 29, 2010, adopted on a permanent basis Sept. 1, 2011. Amended on a permanent basis effective Sept. 2, 2010.

COMMITTEE COMMENTS

Rule 6(C)(3)(a). Significant or repetitive acts of domestic violence by the defendant that posed a grave danger to the plaintiff or protected persons may present good cause to consider time periods beyond the one year. Rule 6(C)(5)(a)-(c). If the residence is included in the no contact provision of an Order of Protection, an apartment number shall not be listed. By listing the address and location without the apartment number, the defendant is prohibited from being on the premises, including the parking lot. Rule 6(C)(5)(d). The appropriate law enforcement agency referenced in subdivision (5) is generally the police department or sheriff's office with jurisdiction over the location of the defendant or firearm. Rule 6(D). Regardless of the jurisdiction of the authorizing judicial officer, the court may issue an Emergency Order of Protection using the superior court name and case number. The law enforcement agency shall file the Emergency Order of Protection with certification of service in superior court. Rules 6(E)(1); 6(F)(1). There is no statutory provision regarding Injunction Against Harassment or Injunction Against Workplace Harassment that would prohibit issuance by a limited jurisdiction court when a family law action is pending in superior court.

17B A.R.S. Rules Protect.Ord. Proc., Rule 7 Rule 7. Motion to Dismiss, Quash or Modify


Arizona Rules of Protective Order Procedure Rule 7. Motion to Dismiss, Quash or Modify

A. Motion to Dismiss or Quash. A plaintiff may request that a protective order be dismissed or quashed at any time during the term of the order.

1. At the time a Motion to Dismiss or Quash is filed or requested, court personnel shall verify the identity of the plaintiff. 2. The plaintiff shall personally appear before the judicial officer and explain why dismissal of the order is sought. The judicial officer shall make sufficient inquiry of the plaintiff to determine that the plaintiff is not making the request under duress or coercion. 3. If the plaintiff and defendant appear jointly on a Motion to Dismiss or Quash, the judicial officer may interview the plaintiff separately only when the defendant has been served but has not requested a hearing. If the plaintiff requests that an order of the court be dismissed and the defendant is not present, the judicial officer may take action without notice to the defendant. 4. If an Order of Protection or Injunction Against Harassment is dismissed or quashed, the sheriff in the county where the original Order of Protection or Injunction Against Harassment was registered shall be notified in writing within 24 hours of the entry of the order. Notice of dismissal of a protective order shall be sent to the sheriff in the county where the original protective order was registered. The dismissal of the order shall be in writing and sent electronically via facsimile or e-mail, not by telephone, to the sheriff.


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B. Motion to Modify. A plaintiff may request that a protective order be modified at any time during the term of the order. 1. At the time a Motion to Modify is filed or requested, court personnel shall verify the identity of the plaintiff.

2. The plaintiff shall personally appear before the judicial officer and explain why modification of the order is sought. The judicial officer shall make sufficient inquiry of the plaintiff to determine that the plaintiff is not making the request under duress or coercion. The judicial officer may interview the plaintiff separately only when the defendant has been served but has not requested a hearing. 3. A motion to modify made after a hearing cannot be granted without setting a hearing and giving notice to the defendant. 4. The service and registration requirements applicable to the original protective order also apply to a modified protective order. A modified protective order is effective upon service and expires one year after the date of service of the original protective order. See A.R.S. §§ 13-3602(L), 12-1809(J) and 12-1810(I). 5. If an Order of Protection or Injunction Against Harassment is modified and served, the sheriff in the county where the original Order of Protection or Injunction Against Harassment was registered shall be notified in writing within 24 hours after the court receives the Certificate or Acceptance of Service. See A.R.S. §§ 13-3602(M), 12-1809(K) and 12-1810(J). Notice of modification of a protective order shall be sent to the sheriff in the county where the original protective order was registered. The modification order shall be in writing and sent electronically via facsimile or e-mail, not by telephone, to the sheriff.

17B A.R.S. Rules Protect.Ord. Proc., Rule 8 Rule 8. Contested Hearing Procedures


Arizona Rules of Protective Order Procedure Rule 8. Contested Hearing Procedures

A. Requesting a Hearing. At any time while a protective order or modified protective order is in effect, a defendant may request one hearing in writing. See A.R.S. § 13-3602(I).

1. A judicial officer shall hold a hearing at the earliest possible time.

a. If an Order of Protection grants exclusive use of the home, a judicial officer shall hold a hearing within five court business days of the request. b. For all other protective orders, a judicial officer shall hold a hearing within 10 court business days of the request unless the judicial officer finds good cause to continue the hearing for a longer period of time.

B. Notice of Hearing. The court shall notify the plaintiff of the hearing. There is no statutory requirement for personal service of notice of the hearing. C. Court Security Measures. The court shall take reasonable measures to ensure that the parties and their witnesses at the hearing are not subject to harassment or intimidation in the courthouse or adjoining property. For each hearing, the judicial officer shall determine whether there is a need to have a law enforcement officer, a security officer, or a victim's advocate present to help ensure the hearing is orderly. D. Parties' Right to be Heard. The judicial officer shall ensure that both parties have an opportunity to be heard, to present evidence and to call and examine and cross-examine witnesses. E. Oath or Affirmation. The court shall administer an oath or affirmation to all parties and witnesses at all hearings.


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F. Standard of Proof. The plaintiff shall prove the case by a preponderance of the evidence, in order for a protective order to remain in effect as originally issued or as modified after the hearing. G. Basis for Continuing, Modifying or Revoking Protective Orders. At the conclusion of the hearing, the judicial officer shall state the basis for continuing, modifying or revoking the protective order. H. Service of Modified Protective Order. The plaintiff or the court shall arrange for service of a modified protective order on the defendant. A judicial officer should assist this process by requesting the defendant sign an acceptance of service form in court.

17B A.R.S. Rules Protect.Ord. Proc., Rule 9 Rule 9. Appeals


Arizona Rules of Protective Order Procedure Rule 9. Appeals

A. Appealable Orders. The following orders are appealable:

1. An order denying a petition for an Order of Protection, Injunction Against Harassment, or an Injunction Against Workplace Harassment. 2. An Order of Protection, Injunction Against Harassment, or Injunction Against Workplace Harassment that is entered, affirmed, modified or quashed after a hearing at which both parties had an opportunity to appear. An ex parte protective order is not appealable unless affirmed or modified after a hearing.

B. Court to Which Appeal Is to Be Made. All appealable orders may be appealed as follows:

1. To the superior court from an order entered by a limited jurisdiction court. 2. To the court of appeals from an order entered by the superior court.

CREDIT(S) Added Sept. 5, 2007, effective Jan. 1, 2008.

COMMITTEE COMMENTS

Rule 9(B)(1). A protective order entered by a limited jurisdiction court after a hearing at which both parties had an opportunity to appear may be appealed to the superior court. See A.R.S. §§ 13-3602(O), 12-1809(N) and 12-1810(N). The procedures to be followed are set forth in A.R.S. § 22-261 for justice courts, are made applicable to municipal courts by A.R.S. § 22-425, and are governed by the Superior Court Rules on Appellate Procedure-Civil.


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17B A.R.S. Rules Protect.Ord. Proc., Rule 10 Rule 10. Forms


Arizona Rules of Protective Order Procedure Rule 10. Forms

A. Forms Adopted by the Arizona Supreme Court. All courts and parties shall only use those protective order forms adopted by the Arizona Supreme Court. Individual court identification information, including the name, address and two assigned court identification numbers, shall appear at the top of each form.

1. Courts may make margin changes and print only those provisions that apply to the issued order. Every first page of every protective order must contain the information in the same format and location as the mandated form. 2. Any other proposed alterations to or deviations from the approved forms, including text changes, shall be submitted to the Executive Director of the Administrative Office of the Courts for approval prior to use. The Executive Director shall be authorized to approve or modify the forms in response to changes in state or federal laws or procedures and make necessary administrative amendments or corrections.

B. Courts Required to Provide All Forms Without Charge. Courts are required to provide, without charge, all forms for protective orders. This requirement includes any form mandated for use in all Arizona courts under A.C.J.A. § 5-207. C. Information Sheet on Available Emergency and Support Services. Courts shall make reasonable efforts to provide to both parties an appropriate information sheet on emergency and support services that are available in the local area. D. Safety Plan. Courts shall provide to plaintiffs information about a safety plan and shall make reasonable efforts to provide information on appropriate emergency and support services once the order is issued. See A.R.S. § 13-3602(D). CREDIT(S) Added Sept. 5, 2007, effective Jan. 1, 2008.

COMMITTEE COMMENTS

Rule 10(A). Arizona Code of Judicial Administration Section 5-207 authorizes the Executive Director of the Administrative Office of the Courts to approve or modify the forms in response to changes in state or federal laws or procedures and make other necessary administrative amendments or corrections, pursuant to Administrative Order 2001-86. Rule 10(C)(D). The Arizona Supreme Court Administrative Office of the Courts has developed a statewide resource list of services categorized by county and a model safety plan. Copies may be downloaded from the Internet at: http://www.supreme.state.az.us/dr/dv.htm. See A.R.S. § 13-3602(D).


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Brady Issues Brady Title 18, Chapter 44, § 922 Court order: 8B(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; OR (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

• Can only apply after a hearing at which the defendant had actual notice • Applies to only certain relationships

• Lived together now or in past in intimate relationship • Roommates do not qualify • Married now or in the past

US V Sanchez 639 F3d 1201 (2011) Ninth Circuit Court of Appeals

• Brady did not apply • Defendant convicted under Brady • The “No-contact order that lacked explicit prohibitions on use, attempted use, or threatened

use of physical force” • Language of order does not need “precise language” of Brady • Must contain explicit terms substantially similar to Brady

Mahar v Acuna 230 Ariz. 530; 287 P.3d 824 (App. 2012) Found Brady prohibition did not apply because no specific finding Current Order of Protection

• Mandated by Administrative Order effective June 3, 2013 No crimes language has been changed to mirror Brady


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Current Order and Brady Current order: …including to harassment, stalking or conduct involving the use, attempted use, or threatened use of physical force Brady: …prohibits the use, attempted use, or threatened use of physical force


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FIREARMS PROHIBITIONS AND CIVIL ORDERS OF PROTECTION Prohibitions in Ex Parte Protective Orders

At an ex parte hearing, if a judicial officer finds that the defendant is a credible threat to the physical safety of the plaintiff or specifically designated person(s), then the judicial officer may prohibit the defendant from possessing or purchasing a firearm for the duration of the Order of Protection. Arizona Rules of Protective Order Procedure, Rule 6(C)(4)(d) and A.R.S. § 13-3602(G)(4).

1. Credible threat is not limited to the use of a firearm, but also extends to the threatened use of a firearm, use or threatened use of other dangerous weapons, and other actions that place the plaintiff or other specifically designated persons in fear of bodily harm or death. A.R.S. § 13-3602(G)(4). 2. If the judicial officer prohibits the defendant from possessing a firearm, the judicial officer shall also order the defendant to transfer any firearm owned or possessed by the defendant, immediately after service of the OP, to the appropriate law enforcement agency. A.R.S. § 13-3602(G)(4)).

Any violation of this order must be addressed through a criminal complaint for interference with judicial

proceedings, and the court must refer any plaintiff reporting a violation to the appropriate law enforcement agency. ARPOP 6(C)(4)(d)((2).

A judge may also issue the same type of order in an IAH case if he feels it is appropriate, under “other orders.” When interviewing the plaintiff for an IAH, the judicial officer must ask the plaintiff about the defendant’s use or access to weapons or firearms. ARPOP 6(E)(4)(e)(2).

1. State Law After a hearing on a protective order, a judge can uphold an order prohibiting weapons possession,

modify an order to prohibit weapons possession, or dismiss an order, which would nullify any weapons order. The order remains in effect, even if modified, from the date of service of the original order.

2. Federal Law (Brady) Persons subject to a qualifying protection order under federal law are generally prohibited from

possessing any firearm or ammunition in or affecting commerce. Violation of this prohibition while the order remains in effect is a federal offense under 18 USC §§ 922(g)(8) and 924 (a)(2) (commonly referred to as the Brady law).


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Elements of a Qualifying Protective Order 1. Plaintiff (intimate partner) includes:

a. A spouse or former spouse of the defendant or; b. A parent of a child of the defendant c. Has cohabitated or cohabitates with the defendant in an intimate relationship.

**Notice that an “intimate partner” under federal law does NOT include someone in a

romantic or sexual relationship (e.g., a dating relationship). It also does not include all the familial relationships that are included in A.R.S. § 13-3601. So it is very possible to uphold a domestic violence restraining order after a hearing and have the Brady firearm prohibition not be applicable.

The issue of cohabitation may be difficult. A number of courts have relied on the "Costigan

factors" to determine whether two people are or were cohabiting. Factors may include: the length of the relationship; shared residence as indicated by spending the night and keeping one's belongings at the residence; intimate relations; expectations of fidelity and monogamy; shared household duties; regularly sharing meals together; joint assumption of child care; providing financial support; moving as a family unit; joint recreation and socialization; and recognition of the live-in relationship by family and friends as indicated by visits to the residence. United States v. Costigan, 18 Fed.Appx. 2 (1st Cir. Me. 2001). See also United States v. Heckenliable, 2005 Westlaw 856389 (D. Utah 2005); United States v. Cary, 2008 Westlaw 879433 (N.D. Ga. 2008).

2. Defendant received actual notice and had an opportunity to participate in a hearing; and 3. The order restrains the defendant

a. from harassing, stalking, or threatening the intimate partner or a child of the intimate partner or a child of the defendant, or b. from engaging in other conduct that would place the intimate partner in reasonable fear of bodily injury to the partner or the child, and

4. The order

a. includes a finding that the defendant is a credible threat to the physical safety of the intimate partner or the child, or b. by its terms, explicitly prohibits the use, attempted use or threatened use of physical force against the intimate partner or the child that would reasonably be expected to cause bodily injury.

**In Arizona, as of June 2013, all Orders of Protection contain the language included in subsections 3 and 4 above; consequently, if the relationship and hearing requirements are met, the order meets the criteria for Brady. Recent case law, both federal and state, clarified that specific language is required to cause a person to be a prohibited possessor under 18 USC § 922(g)(8). In United States v. Sanchez, 639 F3d. 1201 (2011), the 9th Circuit Court of Appeals held that an order prohibiting contact with the victim of a domestic violence offense, in the context of a or;

“... [A] court order must contain explicit terms substantially similar in meaning to the language of (8)(C)(ii). … [A] no-contact order that lacks explicit prohibitions on the use,


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attempted use, or threatened use of physical force against an intimate partner or child... cannot satisfy (8)(C)(ii).” Id. at 1205. In Mahar v. Acuna, 287 P.3d. 824, 230 Ariz. 530 (App. 2012), the Arizona Court of Appeals found that a superior court commissioner erred in signing a Brady notice where the explicit language required by 18 USC § 922 (8)(C)(ii) was not included in the Order of Protection the commissioner issued after a hearing.

Exemptions for Military and Law Enforcement Personnel

1. Federal Law Title 18 U.S.C. § 925(a) provides an exemption for military and law enforcement personnel to carry a weapon while the person is on duty. Specifically, 18 USC Sec 925(C) refers to an Official Use Exemption. It says the restrictions of Sections 922(d)(8) and (g)(8) do not apply to firearms issued by governmental agencies to a law enforcement officer or military personnel so long as the officer or military personnel is on duty. Personal firearms do not fall within this exemption nor may these personnel possess officially issued firearms when off duty.

2. State Law There is no exemption under the state prohibition of weapons law for military or law enforcement. A.R.S. § 13-3602(G). FIREARMS PROHIBITIONS AND MISDEMEANOR CONVICTIONS (LAUTENBERG AMENDMENT) Persons who have been convicted in any court of a qualifying misdemeanor crime of domestic violence generally are prohibited under federal law from possessing any firearm or ammunition in or affecting commerce. 18 USC §§ 922(g)(9), 921(a)(33), 924(a)(2) This is commonly referred to as the Lautenberg Amendment. A qualifying misdemeanor criminal conviction is:

1. A federal, state or local offense that is a misdemeanor under federal or state law; and 2. Has as an element the use or attempted use of physical force, or the threatened use of a deadly

weapon; and 3. At the time the crime was committed, the defendant was:

a. A current or former spouse, parent or guardian of the victim; or b. A person with whom the victim shared a child in common; or c. A person who was cohabiting with or had cohabited with the victim as spouse, parents or guardian; or


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d. A person who was or had been similarly situated to a spouse, parent or guardian of the victim. The U.S. Supreme Court recently ruled that the domestic relationship between the defendant and the victim does not have to be a predicate element of the offense that defendant was convicted of for Lautenberg to apply. The Court ruled that while the relationship does have to be proven beyond a reasonable doubt, it does not have to be one of the elements of the underlying offense. States v. Hayes, 129 S.Ct. 1079 (2009). This definition also does not include all the familial relationships that are included in A.R.S. §13-3601. So the Lautenberg amendment will not apply to every person convicted of a qualifying domestic violence misdemeanor. It does appear, from the case law, that a person who lives with the defendant in a romantic relationship would be considered a victim under the above definition. See Buster v. United States, 447 F.3d 1130 (2006). Live-in girlfriend was considered a “person similarly situated to spouse” making Lautenberg applicable. See also, In re Parsons, 624 S.E.2d 790 (2005). In Arizona, class 2 and class 3 misdemeanor assaults would probably not trigger a Lautenberg prohibition. See United States v. Belless, 338 F.3d 1063 (2003). A class 2 assault involves “intentionally placing another person in reasonable apprehension of imminent physical injury.” A.R.S. § 13-1203 (A)(2). A class 3 assault is defined as “knowingly touching another person with the intent to injure, insult or provoke such person.” A.R.S. § 13-1203(A)(3). Because the statute requires a finding of the use or attempted use of physical force or the threatened

use of a deadly weapon, it is important to make specific findings when taking a plea or finding a defendant guilty after trial.

Case law also dictates that the defendant must have been either represented or knowingly and

intelligently waived his right to counsel (and jury trial, if applicable) before the misdemeanor conviction can be used in a federal prohibited BRADY AND LAUTENBERG NOTICES TO DEFENDANT

The federal Violence Against Women Act (VAWA) provides grant money to states for domestic violence programs. This grant money can be awarded to courts, law enforcement agencies, prosecutors, and domestic violence shelters, to name a few examples. In order to receive these grant monies, states must certify that VAWA requirements are met. In Arizona, the Governor’s Office for Children, Youth, and Families is responsible for the certification. One of the requirements that all the courts in Arizona must meet is giving defendants in both criminal and civil domestic violence cases proper notice when federal firearms prohibitions are triggered by convictions or protective orders.

Brady.

How does a court comply with the Brady notification? The mandated protective order forms provide multiple opportunities for the defendant to be warned. First, the Order of Protection contains the warning on the first page of the order. In addition, the Project Passport protective order forms include a Defendant’s Guide Sheet for Protective Orders that gives notice to the defendant of the Brady law and prohibitions. When a copy of the Defendant’s Guide Sheet is served with the order, the defendant is getting sufficient notice that a hearing might trigger the Brady law prohibitions. Also, a defendant who requests a contested hearing receives the


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warning on the Hearing Request form. Each of these forms includes a notice that the defendant may be a prohibited possessor and should consult an attorney. Finally, the Project Passport forms include the Notice to Sheriff of Brady Indicator. If the parties have a qualifying relationship and the order has been modified or left in effect after a hearing of which the defendant received actual notice and had an opportunity to participate, the Brady prohibitions apply. Copies of the Notice to Sheriff of Brady Indicator should be provided to the parties and to the county sheriff. All of these forms are included in Appendix A.

If your court is complying with the Arizona Supreme Court’s Administrative Directive 2006-01 (regarding mandatory use of Project Passport forms) and using the Project Passport protective order forms in the appropriate way, then your court is also complying with that section of VAWA. Lautenberg.

A defendant who pleads guilty to or is convicted of a criminal misdemeanor domestic violence charge should be given notice of Lautenberg. See United States v. Lenihan, 488 F.3d 1175 (2007). On page 58 are different forms that courts around the state have developed to comply with this requirement. As you can see, some courts verbally notify defendants as part of a plea proceeding and some hand out separate written warnings. The language about setting aside convictions pursuant to A.R.S. § 13-907 is accurate but not required. As long as your court is doing something similar, then your court is complying with the applicable VAWA requirements.

Under A.R.S. §§ 13-3101(7)(d) and 13-3102(A)(4), anyone put on probation for domestic violence is also a prohibited possessor under state law.


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BRADY FAQs Question: I am confused. Do I as a judge need to make a finding of credible threat for the Brady

disqualification to apply? Answer: No. Recent changes in Arizona’s Order of Protection form eliminate the necessity of making

a finding of credible threat. Question: I thought a case held someone was not a Brady prohibited possessor of a firearm unless I as a

judge made a finding of credible threat. Answer: In United States v. Sanchez, 639 F3d. 1201 (2011), the 9th Circuit Court of Appeals held that

an order prohibiting contact with the victim of a domestic violence offense must contain explicit terms substantially similar in meaning to the language of Brady. The Court found “a no-contact order that lacks explicit prohibitions on the use, attempted use, or threatened use of physical force against an intimate partner or child... cannot satisfy” Brady.

The Court found the terms merely had to be substantially similar to Brady. Arizona’s revised language on the Order of Protection is more specific than the finding in Sanchez. The mandated form for Arizona’s Order of Protection mirrors the exact language of Brady. A second case Mahar v. Acuna, 287 P.3d. 824, 230 Ariz. 530 (App. 2012) decided by the Arizona Court of Appeals found that a superior court commissioner erred in signing a Brady notice where the explicit language required by Brady was not included in the Order of Protection the commissioner issued after a hearing. Again, the revised Order of Protection form resolves this issue.

Question: I am still confused. Both cases refer to findings of credible threat. How can a defendant be a

Brady prohibited possessor if no finding of credible threat is made? Answer: If certain relationships exist and a defendant had actual notice of a hearing with an

opportunity to be participate, the federal statute known as Brady states the prohibition will apply if the order:

1. includes a finding that the defendant is a credible threat to the physical safety of the

intimate partner or the child, or

2. by its terms, explicitly prohibits the use, attempted use or threatened use of physical force against the intimate partner or the child that would reasonably be expected to cause bodily injury.

Arizona’s Order of Protection contains the language in number 2 above. Therefore, a finding of credible threat is never required for Brady to apply. It is important to remember only one of the two provisions above must be met to automatically trigger the Brady disqualification.


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Question: Why is there language on the newly revised Order of Protection referring to a finding of credible threat if the finding is not necessary for Brady to apply?

Answer: Under Arizona state law, a judicial officer at an ex parte hearing may make a finding the

defendant is a credible threat to the physical safety of the plaintiff or specifically designated person(s). If such finding is made, the judicial officer may prohibit the defendant from possessing or purchasing a firearm for the duration of the Order of Protection A.R.S. § 13-3602(G)(4).

Credible threat is not limited to the use of a firearm, but also extends to the threatened use of a firearm, use or threatened use of other dangerous weapons, and other actions that place the plaintiff or other specifically designated persons in fear of bodily harm or death. A.R.S. § 13-3602(G)(4).

This finding referred to on the Order of Protection form is made under state law, not under the federal Brady law.

Question: After every contested hearing, I as a judge should sign the form entitled: Notice to Sheriff of

Brady Disqualification, correct? Answer. No. Brady applies to a much narrower group of relationships than covered by Arizona state

law for Orders of Protection. Brady only applies to the following relationships:

1. A spouse or former spouse of the defendant 2. A parent of a child of the defendant 3. Has cohabitated or cohabitates with the defendant in an intimate relationship;

Dating or sexual relationships do not qualify nor do individuals living together without an intimate relationship.

Question: What is a quick summary I as a judge can use to recall when to utilize the Brady form? Answer:

1. Can only apply after a hearing at which the defendant had the opportunity to participate. This can occur at a pre issuance hearing if the defendant received actual notice.

2. One of the following relationships must exist:

a. A spouse or former spouse of the defendant b. A parent of a child of the defendant c. Cohabitated or cohabitates with the defendant in an intimate relationship


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Summary: Easy way to identify Brady on Order of Protection:

1. Relationship a. Married now or in the past b. Child in common c. Lived together now or in past in intimate relationship

2. After a hearing


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Preserving Evidence

Many times plaintiffs will display or play physical or audible evidence at the ex parte stage of the

protective order process. This would be something they should present at the contested hearing when the

proper record can be made. All judges agree this kind of evidence assists them in determining credibility

issues at a contested hearing. However, judges differ in how much information to give plaintiffs about

preserving the evidence.

These are some examples of technology that may disappear before a contested hearing.

• Voicemails are only saved for a limited period of time.

• Text messages may be retained by the phone company for a limited period of time.

• Courts will not take a camera into evidence

• Courts will not take a video camera into evidence. Additionally, they have no way to duplicate a mini

cd recording.

• Some emails can be deleted by providers and lost

Social media such as Facebook or blogs can be changed or removed.


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Issues of Concern Issues #1 - Vagueness

A. Conclusory Statements All judges are faced with requests for orders that contain conclusory statements instead of facts.

1. Petition: Defendant keeps harassing me.

“He keeps harassing me.”

Problem: Conclusory statement. No information is given about the act alleged. *Either judicial officer or clerk should the screen the petition to make sure that specific acts, rather than conclusions are stated *If the petition lacks this information, additions need to be made directly to the petition that support the issuance of the order

Prompt Questions:

• “How has he harassed you?” • “What did he do to you to harass you?” • “Have you told him not to come to the house?” • “When was the last time he came to the house?”

The judge asked very specific questions to elicit specific facts, rather than conclusions. The judge also prompted the petitioner to provide specific examples and dates. Harassment in an Order of Protection setting is governed by ARS 13-2921. Harassment may occur if unwanted contact continues after the person asks for it to cease or if the contact is excessive or occurs at unwanted hours after the plaintiff requests that it stop.

2. Petition: Keeps calling or texting. “My husband keeps calling or texting me.”

Problem: Calling or texting does not necessarily constitute harassment.

Prompt Questions:

• “Have you told him to stop?” • “Has he continued to do so after your request?” • “How many times has this occurred?” • “What was the nature of the call?” • “When was the last time he called or sent you a text?”


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Context is critically important. The judge must ascertain whether there is excessive contact or contact at unwanted hours. The judge must also find out the nature of the contact and whether there is a legitimate purpose for the contact. Here, the plaintiff clearly did not want the contact and she told the defendant that she wanted it to stop. After her request, defendant continued to contact her. Here, there might not be excessive contact, but there was no legitimate purpose for the contact and the contact occurred at an unreasonable time. The judge should look at the contact to decide whether it is reasonable or unreasonable under the circumstances.

3. Petition: He has threatened me “My husband keeps threatening me.”

Problem: No specific information given to ascertain what happened

Prompt Questions:

• “What did he say or do to threaten you?” • “What did he say or do to threaten you?”

“Threats to take legal action are not improper. In fact, we want people to use the legal system to resolve situations rather than taking matters into their own hands. I am not able to issue an Order of Protection in this case.”

Judges will often be faced with requests for protective orders because of threats to take legal action. As you have seen, this is not a basis for a protective order. There are many circumstances where plaintiff does not state specific acts that constitute domestic violence.


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Issue #2 - Failure to State Specific Acts Constituting Domestic Violence or Harassment

1. Petition: “He/she keeps calling the police and/or CPS”. “He threatened to sue me.” “He/She threatened to have me evicted.” “He/She keeps walking or driving by my house.” Problem: no factual basis for finding of domestic violence Prompt Questions:

• “What did he say or do to threaten you?” “A person has the right to call CPS. A person has the right to initiate legal proceedings regarding their parenting rights. The Court cannot issue a protective order against someone for exercising his legal rights. ”

Solution: Judicial officer should advise the petitioner that a person is entitled to utilize legal process.

“The Court needs to have a legal and factual basis for issuing an Oder of Protection, and you need to establish that domestic violence has occurred or may occur. Unfortunately, you did not establish that. I am denying your Petition for this order. However, if anything else occurs where you feel your safety is threatened, come back in for a Protective Order hearing." A person may threaten to call the police, or CPS or another governmental body and make a report. It is up to that agency to act. If someone feels that the legal process is being abused, he or she can seek the appropriate legal remedy. Threats for fight for custody or to take custody of the children most often are not grounds for a protective order.

2. Petition: “He/She has made false accusations against me. Everything he/she said to get the order is false, so I need an order to protection now.”

Problem: Prompt Questions:

• “What did he say or do to threaten you?”

“There is no legal basis to issue a protective order. The Court does not issue protective orders for the purposes of retaliation or as preemptive strike against the other person. If you believe that the other person did not have a basis to obtain an order of protection against you, you have the right to request a hearing to contest that order.


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Missing Information

1. Petition: “Over the last four years, he has repeatedly hit me.”

Problem: no specific dates provided Prompt Questions:

• What brings you here today to ask for an Order of Protection? • “When did this happen?” • “Do you remember the last time it happened?” • “When did you move into your new house?” • “So, you remember that the last time he hit you were in May of this year.”

“I’m going to give your petition so that you can add that information. If the only date that you remember is May of this year, you can put that date. Please put your initials next to whatever you write so we know that you wrote it.”

The judge should be patient with the plaintiff and listen carefully to the answers so that the judge can follow up with the appropriate questions. If the plaintiff is not able to provide a specific date, an approximate date will do. To the extent possible, the petition should say that the date is an approximate one. A month and a year are required. To the extent possible, it should be the plaintiff and not the judge who fills in additional information on the petition. This is to ensure that the words on the petition are the plaintiff’s own words.


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Issue #3 - Gaps in Time

1. Petition: requesting order of protection for bodily harm Problem: abuse happened more than one year ago Prompt Questions:

• “Tell me what happened.” • “What prompted you to come to court today?” • “Has he been in custody this whole time since the incident happened?”

“Normally, I would only be able to consider acts that happened within the last year. But because he has been in custody, the statute allows me to consider acts that happened more than year ago. So, I am going to grant the Order of Protection.”

2. Petition: request for new order of protection

Problem: order expired Prompt Questions:

• “Tell me what happened.” • “How long ago did the order expire?” • “Orders of protection are not renewable. Each petition has to stand on its own. What

brings you to court today?” This scenario is one in which some judges would grant the order of protection and some would not. The purpose of this video is not to tell a judge how to rule. Rather, the judge should make an individual, case by case assessment that includes considering the severity of the initial act of domestic violence, the reasonableness of the gap in time and the credibility of the plaintiff.


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Issue #4 – Children on Protective Orders

A. Acts Alleged

1. Petition: request for order for children Problem: yelling at, but no acts of domestic violence against children Prompt Questions:

• “Are they also his children?” • “Has he committed any acts of domestic violence against you?” • “What act of domestic violence has he committed against the children?”

“While this type of behavior might cause psychological harm to the children, that in and of itself is not the basis for a protective order. If you believe that defendant is doing something that is harmful to the welfare of the children, you may seek relief in family court under Title 25.”

Problem: allegations of being drunk or drug addict Prompt Questions:

• “Are they also her children?” • “What act of domestic violence has she committed against the children?” • “What has she done to you?” • “What has he done to the kids.”

“While this type of behavior might make him a bad father, it is not the basis for a protective order for the children. My standard is whether or not the child is involved in or harmed by domestic violence. Family Court looks at best interest of the child. If you think he’s not the right person to supervise the children, you can seek relief in family court.”

If the judicial officer receives evidence of a specific act of endangerment involving the child/children, the judicial officer may consider putting the children on a protective order. However, there are also remedies available in a different court to address these issues.

Problem: allegations of poor parenting Prompt Questions:

• “What is your relationship to Mr. Jones?” • “Why do you want the Order of Protection?”

“An order of protection can only be issued if there is sufficient proof of an act or threat of domestic violence. I cannot issue an order because the defendant may not be a good parent. This is an issue that must be resolved in Superior Court.”


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Problem: allegations of threats to take children Prompt Questions:

• “Tell me exactly what he said.” “I can’t issue an order based on what you’ve told me. Each parent has equal rights to the child and no parent is the gatekeeper” of the child. Each parent has the right to pursue legal action in family court. Parenting time and visitation is a matter for the family court judge to decide and that will be resolved in another court. ”

If there is a credible threat that one parent will kidnap the child, thereby depriving one parent of parental rights, the judicial officer should consider placing the child on the protective order.

• “Tell me exactly what he said.” • “When he said you’ll never see them again, what exactly did he say?”

“I will grant the order of protection based on the credible threat that the parent has threatened to kidnap the children and deprive plaintiff of her custodial rights.”

2. Petition: request for order on behalf of children Problem: allegations of abuse of parent in front of children Prompt Questions:

• “Were the children involved in the act of domestic violence?” • “Were they harmed in any way?”

“This may not be a good environment for the children, but because the children were not involved or harmed in any way, I do not have a legal basis to put the children on a protective order.

• “Was your son involved in the act of domestic violence?”

“Based on the evidence that your son was involved in the incident, I will place your son on the protective order.”

Plaintiff: “My husband hit me in front of our son.”

Here, the judicial officer may be able to ascertain that the children were involved in the incident. The judicial officer should consider placing the children on the protective order.

• “Was your son involved in the act of domestic violence?” “Based on the evidence that your son was involved in the incident, I will place your son on the protective order.”


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Issue #5 - Issuing Protective Order on Behalf of Children against a third person

1. Petition: request order of protection for child against parent’s new significant other “I want an order protection to protect my son from his mother’s live-in boyfriend.”

Problem: These orders require careful scrutiny because the effect of this order is to either evict the third person from his home or to deprive the other parent of her parental rights. Therefore, the judicial officer should ascertain the specific acts alleged, the source of the information, the credibility of the allegation, and timing of the allegation. Prompt Questions:

• “Does your son live with the boyfriend and his mother?” • “How old is your son?” • “What specifically did he say to you?”

“I have to scrutinize these types of requests very carefully. Based on what you told me, I do not have a legal basis to issue the order. You do have the ability to seek relief in Family Court if you believe that this is not the right person to be supervising your child.”

2. Petition: request an order on behalf of a minor child

“I want an order of protection for my daughter against her 17 year old boyfriend.”

Problem: minor’s wishes need to be considered Prompt Questions: • “How old is your daughter?” • “Why do you want an OP?” • “Does she want an OP? “

“A 17 year old having sex with a 15 year old, even if they both are willing, is still a crime. Because you are the parent and she is underage, you still have the right to control who she sees and to get an order of protection for her. This may make the situation worse, but I am willing to issue the order. Do you still want the order?”


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Issue #6 – Hearings

1. Beginning the Hearing a. Advise parties of the rules regarding a protective order at the beginning of the case. A

judicial officer may want to refer to the Benchbook for a script. Below are some suggestions:

b. c. A judicial officer may want to ask the plaintiff if they desire to have a protective order still

remain in effect and if the defendant still wants to contest the order. d. Verify dates and service e. Explain hearing rules

i. Burden of Proof: That means the plaintiff must show that it is more likely true than not that the defendant committed any acts of domestic violence as alleged in the petition or whether that risk exists

ii. Keeping a record 1. One person speaks at a time 2. Audio recording 3. Exhibits – anything you want me to see must be marked by my clerk and

show to the other side. When the time comes for you to talk about that exhibit, I will ask the other side if there is a legal objection. If I overrule the objection, I will admit and consider the exhibit. If I sustain the objection, I will not admit or consider the exhibit, but I will retain the exhibit for the purposes of appeal

f. Order of the hearing – The plaintiff will proceed first; the plaintiff may testify or call witnesses. After each person testifies, defendant has the right to ask questions. I will explain what I mean by that when we get there. After the plaintiff finishes his/her case, the defendant will get to present his/her case. Plaintiff will have the opportunity to question any witnesses. Then I will make a determination as to the evidence.

g. I may ask questions h. I may be taking notes

2. Time to ask questions suggestion speech:

This is your opportunity to ask questions of the witness. A question is usually “who, what, when, where, why and how.” A question is not testimony, it is not disagreement with the facts, it is not argument. It is not time to tell your side of the case, although you will have that opportunity in just a few minutes. If you have any questions you may ask them at this time. If you do not have any questions and you would like to proceed with your case, just let me know.

3. Hearing tips: a. Issue: Plaintiff or defendant has many witnesses to testify

Solution: If the plaintiff has met the prima facie burden, the judicial officer should state the same. “The plaintiff has met the prima facie burden. Let me hear from the defendant to decide if additional testimony is necessary.”

i. Authority for limiting witnesses and testimony: i. Rule 5 of ARPOP gives judicial officers the authority to limit witnesses and

evidence:


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ii. Probative value is outweighed by danger of unfair prejudice iii. Evidence results in confusion of the issues iv. If cumulative evidence would result v. Evidence lacks reliability

ii. Rule 611 of Rules of Evidence gives judicial officers the same authority

b. Issue: Can the plaintiff present evidence not included in the Petition?

Solution: The judicial officer may want to limit the evidence initially to what is contained in the Petition because of notice to the defendant. However, after the defendant testifies, the judicial officer may want to obtain more information from the plaintiff to make a determination about the order.

c. Issue: The parties are talking with each other.

Solution: Do not let the parties talk to each other. The judicial officer should advise the parties not to talk or argue between themselves.

*Explain that you, as a judicial officer, have to determine credibility. Part of creditability is demeanor.

i. If this is occurring during cross examination, the judicial officer may need

to take control of the questioning.

a. Relevant question:

“Tell me the next question you want to ask.” After question, turn to opposite party stating: “you may answer the question.”

b. Irrelevant question:

“Tell me the next question you want to ask.” After response: “The question is not relevant. What is the next question you want to ask?”

d. Issue: Objections to evidence:

i. “I don’t want you to see that!” ii. “That’s a lie!” iii. “That picture wasn’t taken when she said. I didn’t do anything to cause an injury!”

*Explain that factual disputes are not legal objections. You will get a chance to tell me what you want to tell me about the picture when it is your turn.

7. Ruling: Judicial office should rule from the bench.

I have heard the evidence presented. I have had the opportunity to listen carefully to the testimony. I have observed the witnesses as each testified. I have weighed the credibility of the witnesses. As part of my assessment of credibility, I consider the manner in which each of you testified as well as what you said. I consider whether the evidence is credible – whether it is logical or illogical, whether it is consistent or inconsistent, whether there is any corroborating evidence, or contradictory evidence. The burden of proof is by a preponderance of the evidence. That means the plaintiff must show that is is more likely


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true than not that the defendant committed any acts of domestic violence as alleged in the petition or whether that risk exists. Based on the evidence presented, I find that the plaintiff has (or has not) met the burden of proof.

Do not take matters under advisement. Personal service is required for any modified orders.


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Issue #7 – Brady Issues Brady Title 18, Chapter 44, § 922 Court order: 8B(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; OR (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

• Can only apply after a hearing at which the defendant had actual notice • Applies to only certain relationships

• Lived together now or in past in intimate relationship • Married now or in the past • Roommates do not qualify

US v Sanchez 639 F3d 1201 (2011) Ninth Circuit Court of Appeals

• Brady did not apply • Defendant convicted under Brady • The “No-contact order that lacked explicit prohibitions on use, attempted use, or threatened use of

physical force” • Language of order does not need “precise language” of Brady • Must contain explicit terms substantially similar to Brady

Mahar v Acuna 230 Ariz 530, 287 P 3d 824 (2012) Found Brady prohibition did not apply because no specific finding


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Current Order of Protection vs. Brady • Mandated by Administrative Order effective June 3, 2013 • No crimes language has been changed to mirror Brady

Current order – includes harassment, stalking or conduct involving the use, attempted use, or threatened use of physical force Brady - prohibits the use, attempted use, or threatened use of physical force

A. Application 1. Only applies after an opportunity to be heard AND 2. If a certain relationship has been met

a. Lived together now or in the past in an intimate relationship i. Roommates do not qualify

b. Married now or in the past c. Unmarried with child in common d. Child against parent (but not parent against child) e. Step child against step parent

B. No finding of credible threat is necessary

Brady can be applied in one of two ways if the relationship test is met: 1. Finding of credible threat OR 2. A protective order with certain findings

a. Brady states in Title 18, Chapter 44, 922 USC (c) (8): “is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order”

b. All protective orders as of June 3, 2013 contain the following language to comply with Brady. This is NOT a checkbox and automatically appears on every protective order.

“THE COURT, finding reasonable cause to believe that Defendant may commit an act of domestic violence or has committed an act of domestic violence within the past year (or good cause exists to consider a longer period),HEREBY ORDERS: NO CRIMES. Defendant shall not commit any crimes, including but not limited to harassment, stalking, or conduct involving the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily injury, against Plaintiff or Protected Persons.


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Issue #8 - Modifications

1. Questions to Ask: a. What would you like to change on the OP? b. Has the Order been served on defendant? c. Has he/she asked for a hearing? Have you had a hearing?

2. Considerations:

a. If hearing or request for hearing, explain that any request for modification has to be set for hearing.

b. If no hearing requested or having taken place, but defendant has been served, I explain that I am granting the modification but defendant has to be served again. The order will be in effect for one year from the date that the original order was served. Defendant has the right to have a hearing on the modified order.

c. If no service, I explain that I am granting the modification but defendant has to be served. The order not will be in effect unless and until defendant is served. Then the order will be in effect for one year from the date of service. Defendant has the right to have a hearing on the order.

3. Hearing information to provide after issuing an Order of Protection a. The order not will be in effect unless and until defendant is served. Service has to be done

by a police officer, sheriff’s deputy or process server. Process servers charge for that service. Law enforcement officers do not. (We have a piece of paper with information about service of protective orders that is provided by the Protective Order Center).

b. Once defendant is served, the order is good for one year from the date of service. c. At any time during that year, defendant has the right to have a hearing to contest the

issuance of this order. If defendant comes in and asks for a hearing, we have to set the hearing within 10 days of the request (if exclusive use, I say 5 days). For that reason, it is very important that you keep the court informed of your current contact information—the ways that we can get a hold of you, including you cell phone, email and mailing address. If you do not want the defendant to have that information, we can protect it and we will not give that information to defendant. The reason for this is that if there is a request for a hearing, we will need to contact you and sometimes we do not have time to do that by regular mail. If we cannot get a hold of you because you have not kept your contact information updated, you could lose the protection of the order.

d. If you do not show up for the hearing, you could lose the protection of the order. e. At hearing, you could bring any witnesses with you (I say who are over the age of 18 because

we do not allow children in the courtroom) who saw what happened or have information about what happened.

f. If you have any documents, photographs, emails, or text messages you can bring them with you to court. You will have to print these out so the court can see them. We will not take your cell phone or digital camera into evidence.

g. If there is a police report, and you want the court to see it, you will need to obtain that from the agency that issued it—the court does not have any independent access to police reports.

h. Do you have any questions?


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Issue #9 - Dismissals

1. The judicial officer should ascertain whether the request to dismiss has been made knowingly and

voluntarily and not as a result of force, threats or coercion. Suggested questions: a. What brings you here today? b. Why do you want to dismiss the order? c. What has changed since the order was issued? d. Are you here by yourself? e. Do you feel safe? Or, Do you still feel that defendant is a danger to you? f. Has anyone made you any promises in order to get you to dismiss this order? g. Has anyone promised you that bad things will happen if you do not dismiss the order, or

that good things will happen if you do?

2. Ascertain whether the petitioner wants the Order modified or dismissed. a. You do have the right to ask for the order to be dismissed. In the future, if you believe that

you are danger, you can ask for another Order of Protection. You can get another one even though you have asked for this one to be dismissed.

b. I am going to give you a safety plan. The safety plan is a single piece of paper that you can keep at the bottom of your purse (in case of a female) or somewhere else discreet and it will be there if you need it. If you never need it, great. It gives you information about how to keep yourself safe and what to do in the case of an emergency. It has some phone numbers where you can call to get help if you ever need it. [Reference the safety plan included on page XXX of this document or at http://www.azcourts.gov/Portals/33/Safety-Plan.pdf ].


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Tips for Controlling Parties

It’s Not What You Do: It’s What You Say and If People Feel They Were Heard

1. Explain basics:

a. Remember to turn recorder to record. Make sure red light is on. b. Both parties will be sworn c. Plaintiff goes first d. Defendant then has right to ask questions – it is not the time to tell their side of the story or e. Defendant has the right to ask questions such as whom, what and where. f. Each party will later have an opportunity to make a statement. g. Once plaintiff has finished, the defendant will then tell their side of the story h. Plaintiff has the right to cross-examine. i. Only one person talks and a time and I as judge control who talks. Everything is being

recorded so I have responsibility to make sure record is made. j. May want to cite statute and elements at the beginning: This is what the statute says is required:

relationship and an act of domestic violence. k. Our time frame is 30 minutes, basically 15 minutes for each side. That should be plenty of time

if you stick to the issues. Those issues are: relationship and an act of domestic violence. l. Make sure parties talk into microphone for purpose of recording. Remind them that it is only

the force of their voice that allows you to hear them. Microphones do not amplify voice.

2. May be able to narrow issues a. Try to see if all issues are in contention: Are you challenging the grounds for the issuance or

just a specific term? b. Sometimes, defendant is reading Petition not the Order c. At times, there may be only one issue defendant is disputing d. Check pages 57-58 of the Benchbook for sample script.

3. Narrow witnesses

a. If one party wants to call several witnesses, ask for offer of proof but do not use those words. Say: Is this witness going to testify to something different than I have already heard?

b. After one witness, you may be able to say: let’s hold your other witnesses and see if we need to hear from them.

c. After the plaintiff has testified to the basic elements that establish prima facie burden, you can stop the plaintiff and say: You met the burden for the order to remain in effect. Let’s see if the defendant has any questions or just a statement.


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4. As they try to inject cheating partners etc, remind them of the elements you must find for the Order to remain in effect or be quashed

a. Cite the law that you must apply i. Relationship ii. Act of domestic violence

b. Other issues may be relevant in dissolution or child custody where a best interest of child is standard as opposed to whether child was involved or harmed.

5. If a party keeps trying to testify when it is their turn to ask questions: a. Turn to the party and say: what is your question? b. Indicate: It is not relevant, ask your next question OR c. Turn to other party and say: you may answer d. Keeps this control going. Many times, after a few attempts, the party realizes they really do not

have any questions; they just want to tell their side of the story.

6. If parties turn towards each other, stop them right away. This means they are going to start talking to each other.

7. As soon as one party starts to talk over the other, stop everyone. Remind them that a record is being made and you control who talks.

8. If cross orders for hearings: a. Involving same parties, you may want to ask if the hearings can occur simultaneously.

i. If they agree, then only one hearing proceeds. ii. Each side must have an opportunity to present and cross-examine as to their

allegations in petition. b. If multiple cases involving multiple parties like school kids or neighborhood issues, you may

want to say after hearing 1 for the beginning of hearing 2: i. You were in the courtroom and heard every that was said, is that correct? ii. Do you have any objection to me considering everything that was said in hearing 1 for

this hearing? iii. Do you have any questions of anyone who has testified so far?

c. If many parties in many cases, at the first hearing, you may have to stop hearing and say: i. You need to testify only as to what this defendant did, not others OR ii. Can we consolidate all of these hearings.

d. Need to be specific: i. Make sure you say on the record whether plaintiff has met burden ii. Make sure you say on record which order remains in effect and why or why not


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Domestic Violence Safety Plan If you are leaving an abusive relationship and have or are getting an Order of Protection or an Order

of Protection or an Injunction Against Harassment due to domestic violence, this guide will give some options and suggestion to help maintain your safety.

Most importantly, if you are feeling down, upset, confused or are considering returning to the abusive relationship, call a local shelter or hotline number. They can help you talk about your feelings and safe options should you return. The National Domestic Violence Hotline (24 Hours) 1-800-799-SAFE (7233) 1-800-787-3224 (TDD) Arizona Coalition Against Domestic Violence Legal Advocacy Hotline 1-800-782-6400 602-279-2900 Information and Referral 1-800-799-7739 (in the 602 area) 1-800-352-3792 (in the 520 area) For additional assistance concerning your safety, call a local shelter to discuss and develop a safety plan. In the meantime, these tips may help you. During a Violent Outburst The following tips may help you during an argument:

• Leave/stay away from the kitchen or other rooms with weapons. • Stay out of rooms without exits, like the bathroom or a closet. • If possible, get to a room with an exit and/or a closet. • If possible, get to a room with an exit and/or a phone. • Develop a code word or signal for friends, children and neighbors to call the police. • Call 911 or the local emergency number. • Teach your child to call 911 • Use your instincts


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Have a Protective Order? The following tips may help you if you have a protective order :

• Always keep at least one copy with you at all times. • If your abuser violates the order, call 911 or your local emergency number (you have the right to ask

that a police report be filed). • Give a copy of the order and a picture of the defendant to Security at your job or school. • If the children are included on the order, give a copy of the order to their school, daycare or

babysitter.

• For added safety, you can program 911(or the local emergency number) into the autodial on your phone.

Does your partner/family member ever…

• Call you names, criticize you or put you down? • Control what you do and whom you see? • Threaten to hurt you or others? • Make you feel afraid? • Threaten to or use weapons or objects against you? • Threaten to or use weapons or objects against you? • Hit, kick, shove or injure you? • Force or coerce you to engage in unwanted acts, include sexual acts?

If you answered yes to any of these questions, you may be in an abusive relationship. Now may be the time to consider ways to make you safer. When someone with whom you have an intimate relationship uses physical violence, threats, emotional abuse, harassment or stalking to control your behavior, they are committing domestic violence. FACTS

• Each year 1 million women suffer nonfatal violence by an intimate. • It is estimated that within a 12-month period, 4 million adult women in America experience a serious

assault • by an intimate. • Violence against women occurs in 20% of dating couples. • It is estimated that 3.3 million children are exposed to domestic violence each year.


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If You Plan to Leave If you think you may want to leave, a careful plan is needed to insure safety. Do not let your abuser know of your plans; act as if things are unchanged. It is important to organize the following identification cards, money, keys and any needed legal documents so they are available should you leave in a hurry. The following are suggested items to keep together in case you leave:

• Driver’s License/Picture ID • Birth Certificates • Social Security Cards/Numbers • Health Benefit Cards • Welfare Identification • Address Book • Keys • Money, Credit Cards, Checkbook

If You Leave Leaving an abusive relationship is a very difficult step, one of courage and strength. This step can also be dangerous if you do not plan in advance to maintain safety. The following are suggested actions you can take in order to maintain safety once you have left an abusive relationship.

• You can obtain a protective order for yourself personally. • Your boss can obtain a protective order for the workplace. • Inform friends, neighbors, daycare/babysitter and coworkers that you are no longer with your

abuser, so they can screen your calls or call the police if your abuser shows up. • Provide a list of people who have permission to pick up your child. • Change the locks on your doors and install a security system. • Avoid social places or stores that you frequented while with you abuser.


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Current Protective Order Forms

The following forms are available on-line at http://www.azcourts.gov/Portals/74/CIDVC/DV/AllPOForms06032013.pdf


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Acknowledgements

Special thanks to the planning committee and staff who developed the content and scripts for this workbook: Honorable Elizabeth Finn, Presiding Judge, Glendale City Court Honorable Wendy Morton, Commissioner, Superior Court in Maricopa County Honorable Timothy Dickerson, Sierra Vista Justice of the Court Honorable Maria Felix, Pima County Justice of the Peace Honorable Carey Hyatt, Judge, Superior Court in Maricopa County Honorable Dorothy Little, Judge, Payson Justice Court Julee Ewy Bruno, Arizona Supreme Court Administrative Office of the Cuorts And to the judges and staff who participated in the webcast, which is available at http://supreme22/wendell/COJETEdu/classroom.htm: Honorable Elizabeth Finn, Presiding Judge, Glendale City Court Honorable Wendy Morton, Commissioner, Superior Court in Maricopa County Honorable Michael Pollard, Judge, Tucson Municipal Court Honorable William O’Neil, Presiding Disciplinary Judge Honorable Carol Scott Berry, Judge, Phoenix Municipal Court Honorable Manuel Delgado, Judge, Glendale City Court Honorable Stephen Holding, Commissioner, Superior Court in Maricopa County Honorable Jackie Ireland, Commissioner, Superior Court in Maricopa County Honorable Denise Lightford, Pro Tem Judge, Glendale City Court Christina Nehko, Glendale City Court Mary Jane Ortega, A New Leaf Advocate Assigned to Glendale City Court Teresa Clay, Glendale City Court Cecilia Carbajal, Glendale City Court Kyle Mickel, Glendale City Court David Garretson, Glendale City Court Breanne Lugo, Glendale City Court Officer Thomas Chin, Glendale Police Department Adrian William Hick, Student, Phoenix School of Law Jessica Cadvid, Student, Phoenix School of Law Glendale City Court

This publication was supported by Grant No. 2011-WC-AX-0001 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.

© 2013, Arizona Supreme Court Administrative Office of the Court. All rights reserved.

Documents

A Judge’s Guide: Best Practices for Protective Orders · 2014-06-27 · A Judge’s Guide: Best Practices for Protective Orders A Companion for the Domestic Violence Benchbook Arizona