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.
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 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.
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.
What Happens After The Judge Signs A VPO?
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.
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