WHAT IS AN ORDER OF PROTECTION? CLICK HERE FOR MISSOURI’S DOWNLOAD
- An order of protection is an order issued by a Missouri court pursuant to the Domestic Violence Act that restrains a person from abusing, stalking or harassing another person. Unlike a restraining order, an order of protection carries criminal penalties for violation. An order of protection is valid in every state and should be upheld by law enforcement in every state.
There are two types of orders of protection: an ex parte order of protection and a full order of protection.
- An ex parte order of protection is issued by the court before the person against whom the order is directed has received notice of the petition or an opportunity to be heard in court. It is a temporary order. .
- A full order of protection is issued after a hearing on the record when the person against whom the order is directed has received notice of the proceedings and has had an opportunity to be heard.
WHO ARE THE PARTIES?
- Petitioner A family or household member who has been a victim of domestic violence, or any person who has been the victim of stalking, who has filed a verified petition pursuant to the provisions of section 455.020, RSMo.
- Respondent The respondent is the family or household member alleged to have committed an act of domestic violence, or person alleged to have committed an act of stalking, against whom a verified petition has been filed. It is this person against whom an order of protection is directed.
WHO CAN FILE A PETITION?
- Any person who has been subject to domestic violence by a present or former household member, or who has been the victim of stalking, may seek relief under the Domestic Violence Act by filing a verified petition alleging such domestic violence or stalking by the respondent. The court will deny the ex parte order and dismiss the petition if the petitioner is not authorized to seek relief.
WHERE IS THE PETITION FILED?
- The petition must be filed in the county where the petitioner resides, where the alleged incident of domestic violence occurred or where the respondent may be served.
- Notice to Petitioner: Respondent will receive a copy of the petition with service.
- Filing After Hours: A petition for an order of protection or a motion for a hearing on a violation of an order of protection may be filed after business hours, on holidays or weekends before a circuit or associate circuit judge in the city or county having jurisdiction to hear the petition. All papers filed in connection with a petition or motion must be certified by the judge or clerk within the next regular business day to the circuit court having jurisdiction to hear the petition.
WHERE CAN I FIND A PETITION TO FILE WITH THE COURT?
- The circuit clerk’s office will provide copies of the forms necessary for the presentation of the petition to the court. Clerks will provide assistance in completing these forms without cost. The location of the office where a petition can be filed will be posted conspicuously in the court building. No filing fees, court costs, or bond will be assessed to the petitioner in a domestic violence/stalking action. An attorney is not needed to obtain an order of protection. Forms also can be found at www.courts.mo.gov by selecting Court Forms > Adult Abuse Forms
WHAT IS DOMESTIC VIOLENCE?
Domestic violence is abuse or stalking committed by a family or household member as defined below:
- Abuse: Includes but is not limited to the occurrence of any of the following acts, attempts or threats of assault, battery, coercion, harassment, sexual assault, and unlawful imprisonment against a person who may be protected pursuant to chapter 455, RSMo. Assault: Purposely or knowingly placing or attempting to place another in fear of physical harm.
- Battery: Purposely or knowingly causing physical harm to another with or without a deadly weapon.
- Coercion: Compelling a person by force or threat of force to engage in conduct from which the person has a right to abstain or to abstain from conduct in which the person has a right to engage.
- Harassment: Engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to another person and serves no legitimate purpose. The course of conduct must be such as would cause substantial emotional distress to the petitioner. Such conduct may include following another about in a public place or peering in the window or lingering outside the residence of another.
- Sexual Assault: Causing or attempting to cause another to engage involuntarily in any sexual act by force, threat of force, or duress. Unlawful Imprisonment: Holding, confining, detaining or abducting another person against that person’s will.
- Stalking: When any person purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person’s situation to have been alarmed by the conduct. As defined in the statute: a.) Alarm means to cause fear of danger of physical harm. b.) Course of conduct means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted contact. c.) Repeated means two or more incidents evidencing a continuity of purpose.
HOW DO I GET AN ORDER FOR PROTECTION?
- Go to the courthouse. (You may want to call the courthouse first to see if you need an appointment or to get instructions.):
- in the county where you live, or
- in the county where the abuser lives, or
- in the county where the abuse happened, or
- in the county where you and the abuser had other family court cases.
- Ask the court clerk for a “Request for Domestic Violence Restraining Order” form. Fill out the form. Detailed instructions are available and the court staff or an advocate (a non-lawyer helper) may help you file a Petition (that tells the court what you want) and an Affidavit (that tells the court what happened).
- If you need immediate protection because you believe you are in danger, ask for an Emergency (Ex Parte) Order. This is an order signed the same day you apply, before the abuser knows about the action. An Emergency (Ex Parte) Order will give you immediate protection once it is served on the abuser until there is a hearing.
- There are no fees for a Domestic Violence Restraining Order.
- YOU DO NOT HAVE TO HAVE A LAWYER. However, you may wish to have a lawyer, especially if your abuser has a lawyer.
- In most cases, the court will set a hearing date for no more than 14 days after you apply for a Domestic Violence Restraining Order; seven days if you have received an Emergency (Ex Parte) Domestic Violence Restraining Order. The law gives you the option of obtaining a Domestic Violence Restraining Order without ever having a hearing. See below for more information on this option.
- When you go to the courtroom, it is helpful to bring with you:
- a picture of the abuser, if you have one;
- the abuser’s home address and work address;
- written notes describing the abuse and when it happened; and
- any pictures, police reports, or medical reports related to the abuse.
WHAT CAN THE ORDER FOR PROTECTION INCLUDE? WHAT CAN I ASK THE COURT TO DO?
The court can make any of the following orders based on what you request in the Petition:
- Order the abuser not to assault, threaten, abuse, follow, harass, or interfere with you, your children, or people you live with in person, at work, on the telephone, or by other means;
- Order the abuser to stay away from any place you request including your school, your children’s school, your work place, your friends’ homes, or any place where you are seeking shelter;
- Prohibit the abuser from possessing or purchasing a firearm;
- Tell the police to remove the abuser from the home and help you to return to the home;
- Grant you temporary full control over things that you own together such as a car, a truck, a boat, a computer, tolls, electronic equipment, bank accounts, or household appliances;
- Order the abuser to continue to make the loan payments (be sure to specifically ask for this if you need it);
- Order the abuser to return your personal belongings;
- Order the abuser to pay certain bills, pay back money you lost for missing work or other expenses (such as ambulance, medical, dental, shelter, counseling and/or legal fees);
- Order the abuser to pay your attorney fees;
- Order the abuser to attend a batterer’s treatment program or other counseling service;
- Anything else you ask for and the judge agrees to.
A federal law makes it a crime for a person to possess guns if they have a Domestic Violence Restraining Order against them. If the abuser owns or has guns, in your petition you should ask the court to order the abuser to turn all guns over to the police.
HOW DOES THE ABUSER FIND OUT ABOUT THE HEARING OR ABOUT THE ORDER?
If you know where to find the abuser, the Petition and any Emergency (Ex Parte) Order must be personally handed to (served on) the abuser. This is done by the Sheriff. There is no cost to you for the service. Your county may require that you fill out a “fee waiver application” in order to have the sheriff serve the order for free. If you hire a professional process server to serve your abuser, you must pay for that separately.
What if I don’t know where the abuser is, or if the abuser is hiding or can’t be found? There are special ways to serve people who can’t be found. The court can order service in other ways, such as mailing the papers to an address where the abuser might get mail. The court can also order service by publishing the Petition in a newspaper’s legal notice section or in a special legal newspaper. The court clerk or advocate will help you fill out special forms. You should check with the court no later than 14 days after you filed the Domestic Violence Restraining Order to find out if the abuser has been served and to find out if you must fill out any special forms.
WHAT HAPPENS AT THE HEARING?
[NOTE: You may not be able to use written reports, affidavits, or statements from persons who are not at the hearing as witnesses.] The abuser also has a chance to tell the court his or her side of the story. The judge may ask questions, and you and the abuser may be allowed to ask each other questions. The judge will usually make a decision right away about whether to issue an Order For Protection.You may have an advocate with you. You may also have a lawyer, but YOU DO NOT HAVE TO HAVE A LAWYER.Sometimes the abuser will also file a Petition for an Order For Protection, claiming that you have abused him/her as well. The judge may choose to hear both Petitions at the same time and decide who should get an Order For Protection. If the abuser has not filed a Petition against you, a judge will not issue a “Mutual Order For Protection” (an order against both you and the abuser).
WHAT HAPPENS AFTER THE HEARING? HOW LONG AM I PROTECTED?
Most protection orders are in effect for 1 year with the option of having it automatically renewed. The Domestic Violence Restraining Order will describe your rights. Read it carefully. The judge may order different things than what you asked for.A copy of the Order For Protection will be sent to the local sheriff’s department and to police departments by the court clerk. KEEP A COPY OF THE ORDER WITH YOU AT ALL TIMES.
WHAT HAPPENS IF I HAVE AN ORDER AND THE ABUSER VIOLATES IT?
If the abuser threatens, harasses, or contacts you or the children, or comes to your house or apartment or place of employment, it is a violation of the Domestic Violence Restraining Order. If the abuser disobeys the Order, you should call the police or sheriff right away. The police do not need to see the assault or threat, but they do need to see a copy of the Order. The abuser can be put in jail for up to 90 days and be ordered to pay a fine of up to $700.00 for violating the Domestic Violence Restraining Order. Even if you invited the abuser into your home, the abuser may still be guilty for violating the Order. Some repeat violations are gross misdemeanors which may result in a sentence of up to one year in jail and/or a $3,000.00 fine. Other violations are felonies which may result in a sentence of imprisonment of up to ten years and/or a fine of $20,000.00.You can also ask the court to enforce the Order. You must file a form with the court describing what the abuser did that was in violation of the Order. You can also use this form if the abuser doesn’t pay child support, doesn’t follow the custody or visitation order, or fails to go to counseling. The judge can order the abuser to appear in court for a hearing. Both you and the abuser can testify. If the judge decides that the abuser violated the Order, the abuser can be punished.
HOW DO I CHANGE, EXTEND, OR DISMISS AN ORDER FOR PROTECTION?
Contact the court clerk or advocate in the county where you requested your Order and explain that you wish to change, extend, or dismiss your Domestic Violence Restraining Order. Most courts require you to complete a form requesting the change and to appear in court again. The abuser may also have to appear in court.It is important to have your Order dismissed by a judge if you and the abuser wish to live together again or have contact.If you wish to extend your Domestic Violence Restraining Order, you must contact the court clerk one or two months before the Order expires and complete paperwork explaining why you continue to need the Domestic Violence Restraining Order. A judge will consider extending your Order if the abuser:
- violated the order while you had it, or
- has been harassing or stalking you, or
- you are still in fear of physical harm because of conduct by the abuser.
If you move after getting your Domestic Violence Restraining Order, send a copy of your Order to your new police department and call the court to change the address in your file. Your address can be kept secret from the abuser.