Permanent Protective Orders in Domestic Violence Cases
Permanent Protective Orders in domestic violence cases occur when the victim in a domestic violence assault wants to go forward with a protective order that last much longer than an Emergency Protective Order. Unlike an Emergency Protective Order a Permanent or Final Protective Order can only happen if the victim wants to go forward and is cooperating with the prosecution.
A permanent protective order must be obtained through a formal hearing. To issue the order a court must find that family violence has occurred and is likely to occur in the future. Most District Attorney’s Offices require the victim to come to the office and meet with a victim advocate or investigator and write an affidavit which covers the facts surrounding the family violence arrest and other facts which cause the victim to believe family violence will occur in the future. The victim often cites previous violence and threats made by the defendant.
Next a prosecutor prepares a petition with the victim’s affidavit attached and then a sheriffs deputy or constable attempts to serve the defendant with a copy of the petition and a date to appear for court. The defendant must be served before the hearing process begins. If the defendant is served and fails to show up then the Judge can enter an order by default.
If a defendant is served with paper work for a final protective order they should contact an experienced criminal attorney immediately. Chances are the defendant already has hired a criminal lawyer due to an arrest being made for the assault allegation. However sometimes the police delay issuing an arrest warrant and the protective order hearing is the first step in prosecution.
The first decision a criminal lawyer and his client must make is whether to agree to the permanent protective order or have a contested hearing. The affidavit written by the victim must be reviewed in great detail. Victim’s write these affidavits when they are angry and upset and they may exaggerate facts or lie. Often times the criminal attorney can use text, social media post and emails to trap the victim in lies. If this occurs it can greatly weaken the prosecutions case and lead to a dismissal or a plea offer to a lessor offense.
In some cases the attorney and client may decide the best strategy is to agree to the final protective order. If a permanent protective order is entered it sometimes satisfied the victim who may be feel protected and will then agree not to prosecute the defendant for a criminal assault. In other cases the criminal attorney for various reasons may decide it’s better to avoid a hearing and enter an agreement.
If a permanent or final protective order is granted a defendant is almost always required to to complete a Batters Intervention and Prevention Program called BIPP. That class takes a minimum six months to complete. The order also requires the defendant not to have any contact with the victim or go near the victims house or work place. The Order is usually in place for two years but can be extended under special circumstances. The Order will also always be in court records and can’t be sealed or expunged.
If a defendant violates the protective order he or she can be arrested on a new criminal charge. A defendant can even be arrested if the victim initiates contact