A victim protective order (VPO) in Oklahoma is a civil court order that’s designed to stop violent or harassing behavior and protect a victim and victim’s family from an abuser. The civil legal protection from a VPO applies to both male and female victims. A VPO is just a court order. A victim must still take steps to protect themselves.
Eligibility for a Victim Protective Order
The following may seek the relief of a VPO:
- a victim of domestic abuse;
- a victim of stalking; a victim of harassment;
- a victim of rape; or
- any adult or emancipated minor, household member on behalf of any other family member or household member who is a minor or incompetent or any minor aged 16 or 17 years.
There has to be a relationship between the two individuals or certain acts need to have occurred. The person filing the VPO is called the Petitioner. The person against whom the VPO is filed is the Defendant.
Jurisdiction must exist. At least one of the following jurisdictional requirements must be met:
- the petitioner is a resident of the county where the petition is filed,
- the defendant is a resident of the county where the petition is filed, or
- the domestic abuse occurred in the county where the petition is filed.
The actions of the defendant must include either 1) causing or attempting to cause physical harm, 2) threatening imminent physical harm, 3) harassment, or 4) stalking. For all but stalking, the two individuals must have a certain relationship. The following qualifies as a “relationship” for these purposes: married, parent & child, persons related by marriage, persons living in the same household, biological parents of the same child, victim of rape, divorced, persons related by blood, present spouse of an ex-spouse, formerly living in same household, or persons in a previous dating relationship. For stalking, the petitioner must have filed the complaint against the defendant with the proper law enforcement agency before filing a petition.
A victim of rape, forcible sodomy, a sex offense, kidnapping, assault and battery with a deadly weapon or member of the immediate family of a victim of first-degree murder may petition for an emergency temporary order or emergency ex parte order regardless of any relationship or scenario pursuant to the law. (New in 2019)
22 O.S. § 60.1 defines stalking as the willful, malicious, and repeated following or harassment of a person by an adult, emancipated minor, or minor 13 years or older, in a manner that would cause a reasonable person to feel frightened, intimidated, threatened, harassed, or molested. The stalking must actually cause the person being followed or harassed to feel terrorized, frightened, intimidated, threatened, harassed, or molested. Stalking also means a course of conduct composed of a series of two or more separate acts over a period of time, however short, evidencing a continuity of purpose or unconsented contact with a person that is initiated or continued without the consent of the individual or in disregard of the expressed desire of the individual that the contact be avoided or discontinued. Unconsented contact or course of conduct includes, but is not limited to:
- following or appearing within the sight of that individual,
- approaching or confronting that individual in a public place or on private property,
- appearing at the workplace or residence of that individual,
- entering onto or remaining on property owned, leased, or occupied by that individual,
- contacting that individual by telephone,
- sending mail or electronic communications to that individual, or
- placing an object on, or delivering an object to, property owned, leased, or occupied by that individual.
Harassment is a knowing and willful course or pattern of conduct by a family or household member or an individual who is or has been involved in a dating relationship with the person, directed at a specific person that seriously alarms or annoys the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and it must actually cause substantial distress to the person. Harassment includes, but is not limited to, harassing or obscene telephone calls and fear of death or bodily injury.
Family Members Of A Victim Of First-Degree Murder
A member of the immediate family of a victim of first-degree murder may seek a VPO against the following people:
- The person who was charged and subsequently convicted as the principal in the crime of murder in the first degree; or
- The person who was charged and subsequently convicted of being an accessory to the crime of murder in the first degree.
Sources: 22 O.S. § 60.2, 22 O.S. § 60.1, & 22 O.S. § 40.2
How to Get a Victim Protective Order in Oklahoma
There are two main ways that someone can apply for a VPO—either through an emergency ex-parte order or an emergency temporary ex-parte order. Whichever one the victim uses depends on whether or not the courthouse is open.
The VPO must be served on the defendant before it can be of any help. So, be sure to have an accurate address of the abuser/stalker/harasser when filling out the VPO paperwork. A VPO cannot award custody, mandate a visitation schedule, award financial assistance, award child support, or award property. However, during a VPO hearing, the judge can help facilitate an emergency agreement to stabilize children pending the filing of a divorce and facilitate an agreement for supervised visitations.
Emergency Ex-parte Order
A victim will seek an emergency ex-parte order when the courthouse is open. The emergency ex-parte order is covered in 22 O.S. § 60.3. This is the most common way to get a VPO. The first step is to go to the correct county courthouse and fill out the paperwork for an emergency ex-parte order. It would be in the district court of the county where the petitioner is a resident, where the defendant is a resident, or where the domestic abuse occurred. The petitioner will fill out a form titled “Petition for Protective Order.”
Once the petitioner fills out the request for the emergency ex-parte order, the court will hold an ex-parte hearing on the same day the petition is filed if the court finds sufficient grounds to hold such a hearing. The court will issue an emergency ex-parte order if it finds it necessary to prevent the victim from immediate and present danger or domestic abuse, stalking, or harassment. The order will be in effect until after the full hearing has occurred. However, if the defendant does not appear at the hearing after they have been served, then the emergency ex-parte order shall remain in effect until the defendant is served with the permanent order. If the terms of the permanent order are the same as those in the emergency order or are less restrictive, then it’s not necessary to serve the defendant with a permanent order.
Emergency Temporary Ex-parte Order
An emergency temporary ex parte order occurs when the court is not open for business and someone is a victim of domestic violence, stalking, harassment, rape, forcible sodomy, a sex offense, kidnapping or assault and battery with a deadly weapon, or member of the immediate family of the victim a first-degree murder. This is covered in 22 O.S. § 40.3. The procedure for this begins with the victim notifying law enforcement of the reason for needing a protective order. The officer will immediately notify a judge, and then the judge will inform the officer of the decision to approve or disapprove the temporary emergency order.
The officer will then inform the victim or member of the immediate family of a victim of first-degree murder whether the judge has approved or disapproved the emergency temporary order. The officer will then notify the person subject to the emergency temporary protection order of the issuance and conditions of the order. The emergency temporary ex parte order will be in effect until the court date that was assigned by the court during the approval of the order. Emergency temporary ex parte orders will be heard within 14 days after issuance.
The hearing will be scheduled within 14 days of the filing of the petition for a protective order. The court can schedule a full hearing on the petition for protective order within 72 hours when the court issues an emergency ex-parte order suspending child visitation rights due to physical violence or threat of abuse.
A copy of the petition for protective order, notice of hearing, and a copy of any emergency ex-parte order issued by the court must be served upon the defendant to hold a hearing. If service has not been made on the defendant at the time of the hearing, the court shall, at the request of the petitioner, issue a new emergency order reflecting a new hearing date and direct service to be made. Failure to serve the defendant shall not be grounds for dismissal of a petition or an ex-parte order unless the victim requests dismissal or fails to appear for the hearing.
A petition for a protective order will, upon the request of the petitioner, renew every 14 days with a new hearing date assigned until the defendant is served. A petition for a protective order will not expire unless the petitioner fails to appear at the hearing or fails to request a new order. A petitioner may ask the court to dismiss the petition and emergency or final order at any time; however, a protective order can only be dismissed by court order. A final protective order shall be granted or denied within six months of service on the defendant unless all parties agree that a temporary protective order remain in effect; provided, a victim shall have the right to request a final protective order hearing at any time after the passage of six months.
Preparing For A Victim Protective Order Hearing In Oklahoma
The best way to maximize your chances of success at a VPO hearing is to hire an attorney. Some people decide to go through with a VPO hearing without the assistance of counsel. That is a risky move because the other side may have an attorney helping them. An attorney knows the rules of evidence and the most effective ways of questioning witnesses and presenting evidence. Important issues may be overlooked if one tries to go through with a VPO hearing without an attorney.After you hire an attorney, you will need to help your attorney as much as possible. This involves giving witness information and evidence to your attorney. Witnesses are anybody who saw the abuse, your injuries, the stalking, or the harassment. This can include friends, family members, children, medical professionals, law enforcement officers, or even strangers. Try to take note of people who were around during the incident(s) so you can get their information to your attorney.
Gather evidence to help prove your case. Your testimony will be evidence. Remember that you must testify truthfully because lying while under oath is a crime. Other evidence can include police reports, pictures of injuries, pictures of a disturbed household after a domestic violence incident, 911 call audio, a certified copy of the abuser’s criminal record, screenshots, audio recordings of telephone calls, and anything else that you can use to convince the judge that you are in need of a protective order.
Your chances of success increase with the amount of evidence you have. However, evidence other than your testimony is not required. The judge will still listen to you despite your having no other witnesses or evidence. Remember that to win, your evidence must outweigh the other side’s evidence. If the only evidence presented is the testimony of the parties, then your testimony must be more credible than that of the opposing side for you to win.
Write down the details of the events of stalking, abuse, or harassment as soon as possible after the event happens. This will help in telling your story to the judge. I prepare questions to ask my clients on direct examination and go over them with my client prior to the hearing. Having the events written down in a client’s own words ahead of time helps me prepare those questions and ensure that nothing critical is left out.
Remember to be specific when telling your story. Vague descriptions will not be helpful. Try to describe specifically what was done, when it was done, where on your body a battery occurred, and how many times the incident(s) happened.
There are some other things that you should consider including in the evidence you produce to the judge. Bring up the most recent incident(s) of violence and the worst incident(s) of violence. Let the judge know if the defendant has guns or other weapons. Let the judge know about any threats by the defendant to kill or physically hurt you.
What To Expect At The Hearing
Procedures for a hearing are covered in 22 O.S. § 60.4. At the hearing, each side will have the opportunity to present its case. The petitioner goes first and makes the case to the judge as to why a final protective order should be in place against the defendant. Then, the defendant will have an opportunity to state why there should not be a final protective order in place. Both parties can bring witnesses in to testify, and both parties can bring in other evidence such as screenshots from a telephone, voice recordings, or pictures. Both sides also have an opportunity to cross-examine the other side. The judge will rule for the petitioner if they believe the petitioner has proved by a preponderance of the evidence that a protective order is necessary.
The court may impose any terms in the protective order that the court reasonably believes are necessary to bring about the cessation of domestic abuse, stalking, or harassment. The court will not impose any term and condition that may compromise the safety of the victim. If there is a restraining order in a divorce or separate maintenance action, then the protective order may be dismissed in favor of the restraining order or separate maintenance action.
The court may assess costs and fees to the defendant. However, the court has the authority to waive the costs and fees if the court finds that the defendant does not have the ability to pay those costs and fees. The court may assess attorney fees and costs against the petitioner if it makes specific findings that a petition for a protective order has been filed frivolously and no victim exists.
There is sometimes a pending criminal case against at least one party. This is typically a domestic abuse case. In that situation, the judge will likely keep the emergency order in effect until the criminal case has been disposed of. This is done because what is said in that hearing can be used in the criminal case.
Courts do not issue mutual protective orders. If both parties allege domestic abuse by the other party, then the parties must do so by separate petitions. The court will review each petition separately in an individual or consolidated hearing and grant or deny each petition on its individual merits. If the court finds cause to grant both motions, it will do so by separate orders and with specific findings justifying the issuance of each order. The court may only consolidate a hearing if it makes specific findings that: 1) sufficient evidence exists of domestic abuse, stalking, harassment, or rape against each party; 2) each party acted primarily as aggressors; 3) the defendant filed a petition with the court for a protective order no less than three days, not including weekends or holidays, prior to the first scheduled full hearing on the petition filed by the plaintiff; and 4) the defendant had no less than 48 hours of notice prior to the full hearing on the petition filed by the plaintiff.
The court may allow a plaintiff or victim to be accompanied by a victim support person at court proceedings. A victim support person does not make legal arguments. However, a victim support person who is not a licensed attorney may offer the plaintiff or victim comfort or support and may remain in close proximity to the plaintiff or victim.
Per 22 O.S. 60.4, it is illegal to knowingly and willfully seek a protective order against a spouse or ex-spouse pursuant to the Protection from Domestic Abuse Act for purposes of harassment, undue advantage, intimidation, or limitation of child visitation rights in any divorce proceeding or separation action without justifiable cause. A first offense is a misdemeanor that carries up to one year in the county jail. The maximum fine is $5,000. The second or subsequent conviction is a felony. The punishment can be up to two years in the Department of Corrections with a maximum fine of $10,000.
Testifying at the VPO Hearing
You do not have to testify in court. However, it will greatly benefit your case in the VPO hearing to testify no matter what side you’re on.
Testifying in a VPO hearing can put you in a bad spot if you have a pending criminal case that’s related to the event for which you are having the VPO hearing. What you say in court can and will be held against you. The opposing party will likely request a court reporter. This is so that your testimony can go on record and be used against you in the criminal proceeding. If you see this happening, then you would likely choose to not testify. So, the court reporter probably will not even get there because the threat of having a court reporter can be enough to prevent a party from testifying.
If you don’t testify, then you need other ways of introducing evidence to back up your case. This must be through other witnesses. Those other witnesses must be able to introduce any pictures or other evidence. If you don’t have any witnesses and you don’t testify, then you will likely lose.
What Happens After the Judge Signs the Order
The defendant is expected to abide by the terms of the VPO. It is a crime to violate a VPO. A final protection order can be in effect for up to five years. According to 22 O.S. § 60.6, at no time under any proceeding may a person protected by a protective order be held to be in violation of that protective order. Only a defendant against whom a protective order has been issued may be held to have violated the order.
Sources: 22 O.S. § 60.3, 22 O.S. § 40.3, 22 O.S. § 60.4, and 22 O.S. § 60.2
Restrictions A VPO Places On A Defendant
A VPO, per se, does not actually prevent somebody from making contact with another person. Criminal penalties for violating a VPO provide an incentive to not violate the VPO.
The VPO may order the defendant to do certain things or take certain measures that would make it more difficult for them to either stalk, injure, or harass the petitioner. For example, 22 O.S. § 60.17 allows the court to order the defendant to use an active real-time 24-hour GPS monitoring device. The court may authorize the victim to monitor the location of the defendant. If the court finds that the defendant has a history that demonstrates an intent to commit violence against the victim, then the court may order the defendant to pay costs and expenses relating to that GPS device and monitoring.
The court will order the defendant to comply with various requirements. The court order may state that the defendant is:
- prohibited from attempting or having any contact whatsoever with the petitioner through telephone, mail, electronic means, or any other manner at any time or place unless specifically authorized by the court;
- prohibited from injuring, abusing, sexually assaulting, molesting, harassing, stalking, threatening, or otherwise interfering with the protected persons and from attempted use or threatened use of visible force against the protected person that would reasonably be expected to cause bodily injury;
- prohibited from engaging in other conduct that would place the protected persons in a reasonable fear of bodily injury to the protected persons or the protected persons’ household, members, or relatives;
- ordered to leave and remain away from a particular residence at a certain time and date and to take no action to change utilities or telephone service;
- ordered to immediately surrender all firearms and other dangerous weapons within their possession or control and any conceal carry license to law enforcement; and/or
- ordered to obtain domestic abuse counseling or treatment.
If the order is served upon the defendant at the residence to be vacated, the court can order law enforcement officers to remain at the residence until the defendant removes necessary clothing and personal effects and leaves the premises. If the order is served upon the defendant at a location other than the residence to be vacated, the court can order law enforcement officers to accompany the defendant to the residence and remain in attendance until the defendant removes necessary clothing or personal effects and leaves the premises. The defendant, in that situation, will be ordered not to go to the residence to remove necessary clothing and personal effects unless law enforcement officers are present. The court can also order law enforcement officers to accompany the petitioner to the current or recent past residence to remove clothing and personal effects and remain in attendance until the petitioner leaves the premises.
If the defendant is a minor, they can be ordered to leave the residence and be immediately placed in the custody of somebody else. In that situation, a preliminary hearing in a juvenile proceeding will be ordered to determine whether further court action would be necessary. The court can modify a visitation order if there is an existing visitation order.
The court can give exclusive care and custody of certain animals to the petitioner. In that case, the defendant will be ordered to have no contact with the animals and will be forbidden from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.
Finally, the court can order other things that the court deems necessary.
Sources: 22 O.S. § 60.17, 22 O.S. § 60.2, and 22 O.S. § 60.1
What You Can do if Someone Files a VPO on You
Having a VPO filed on you can be an unnerving experience. The amount of evidence required to get approval for an emergency VPO is very low. Therefore, it’s very easy to tarnish someone’s reputation when very little may have occurred.
A VPO is very public. It will appear on OSCN as soon as it’s filed. Anyone in the world can look up your name on OSCN and see that someone is claiming that you have either abused, stalked, or harassed somebody. It is difficult to get that information removed once it’s on there.
The most important thing to do when you are served with a VPO is to obey the VPO! Violating a VPO is a crime. Next, contact an attorney. It is certainly your right to “go it alone” in a VPO hearing, but the stakes are high. It’s not worth your reputation to save a few bucks. The same reasons a petitioner should hire an attorney also apply to the defendant. However, it is even more important that a defendant get an attorney for a VPO hearing. If a petitioner loses a VPO a hearing, it’s no big deal. If a defendant loses a VPO hearing, the VPO will be in effect, and many unpleasant things will happen.
Help your attorney by gathering evidence. It will be the same type of evidence the petitioner will have to produce. You will need evidence and witnesses to help prove that you did not commit the acts described in the petition. Maybe there is evidence showing that the petitioner is lying or has a motive to make these accusations. All that will need to be brought out in court. If there is a witness that you need to testify on your behalf in court, your attorney could issue a subpoena, which commands their appearance.
Come to court prepared. Bring your evidence and witnesses. The other side will need an opportunity to review any evidence you present to court prior to the hearing. Look over the petitioner’s evidence before he or she presents it in court. Make sure your witnesses know why they are there and what you are going to ask them. They must tell the truth, so impress upon them that they are not to make things up. Dress nice. Looking clean-cut and nicely-dressed goes a long way. The judge will be evaluating every aspect of how you present yourself.
Let your attorney do the talking. Don’t attempt to talk to the petitioner in the courthouse before the hearing if you have retained counsel. Your attorney can talk to the petitioner. If petitioner is represented by counsel, then your attorney will talk to that attorney. They may be able to work out something before the hearing. Sometimes, deals are made that could involve the emergency order terminating after a short period of time or terminating after a party takes certain actions. It’s even possible to negotiate a dismissal of the petition that day.
Duration Of A Victim Protective Order
22 O.S. § 60.4 outlines the two ways a VPO’s duration can be determined. First, a VPO can be in effect for either a fixed period or up to five years unless extended, modified, vacated or rescinded upon motion by either party, or if the court approves any consent agreement entered into by the petitioner and defendant. If the defendant is incarcerated, the protective order will remain in full force and effect during the period of incarceration. The period of incarceration, in any jurisdiction, is not included in the calculation of the five-year time limitation.
Second, a protective order can also be in effect for a continuous period of time upon a specific finding by the court of one of the following:
- the person has a history of violating the orders of any court or government or entity;
- the person has previously been convicted of a violent felony offense;
- the person has a previous felony conviction for stalking; or
- a court order for a final VPO has previously been issued against the person in this state or another state.
The court may take into consideration whether the person has a history of domestic violence or a history of other violent acts. The protective order will remain in effect until modified, vacated, or rescinded upon motion by either party, or if the court approves any consent agreement entered into by the plaintiff or defendant. The court will notify the parties at the time of issuance of the protective order of the duration of the protective order.
If a motion is filed by either party to modify, extend, or vacate a protective order, a hearing will be scheduled and notice given to the parties. At the hearing, the issuing court will take any action that’s necessary under the circumstances.
If a child has been removed from the residence of a parent or custodial adult because of domestic abuse committed by the child, the parent or custodial adult may refuse the return of such child to the residence unless, upon further consideration by the court in a juvenile proceeding, it is determined that the child is no longer a threat and should be allowed to return to the residence.
Sources: 22 O.S. § 60.6 and 22 O.S. § 60.4
How a VPO Can Get Dropped
The petitioner can win at the VPO hearing if they put on enough evidence to make the court believe that a final protective order should be in effect. The defendant can win at the hearing if the petitioner does not put on enough evidence to have the court believe that a protective order should be in effect.If the parties show up to the hearing and the petitioner states that he or she wants the VPO dropped, then the judge will dismiss the VPO. A VPO can also get dismissed if the petitioner does not show up.
Do not take any action that prevents another party from showing up in court. Don’t threaten or a harass witness with the intent to prevent them from testifying. Doing any of these things will hurt your case and potentially subject you to criminal liability.
Current as of April 4, 2020. Laws are subject to change at any time! Go to the sources cited above for the most up-to-date law.