Court Advocacy
Program
A court advocate is
someone who has been specially trained to provide you assistance as you
petition the court for a Domestic Violence Protective Order.
What
can an advocate do with me?
How
can I reach an advocate?
When you go to the Plymouth District
Courthouse to file for a protective order, they will automatically call an advocate.
An advocate will arrive at the courthouse shortly if one is available.
Sometimes advocates may not be available on such short notice. In this case, a
court clerk can explain the necessary paperwork.
Do
I need an attorney?
An attorney is not required and often not
necessary; however, you may hire one if you wish. You may wish to consider an
attorney if children are involved or if the defendant has an attorney. Talk
with an advocate if you are unsure.
What
is a protective order?
·
It is a civil
court remedy available to victims of domestic violence.
·
Its intent is
to keep the victim safe from further abuse.
What
kinds of relief does a protective order provide?
If
a judge grants your request for a protective order, it will restrain the
defendant from:
® abusing you;
® contacting you in any way;
® entering your residence, workplace, or
school;
® harassing, intimidating, or threatening you,
your relatives, and your household members;
® taking or damaging your property; and
® possessing firearms or other weapons.
A
protective order can also:
® award custody and set up visitation and
child support;
® award use and possession of the residence,
personal property, furniture, and a vehicle;
® order counseling or batterer’s treatment for
the defendant; and
® order the defendant to pay you for financial
losses incurred as a direct result of the abuse.
What
are the advantages of a protective order?
·
The
information does not go on the defendant’s criminal record (except in cases
where a subsequent criminal arrest has taken place, or the defendant violates
the protective order).
·
The relief is
immediate.
·
There is no
filing fee.
·
An attorney is
not required, however, in some cases it may be advisable to hire an attorney.
What
are the disadvantages of a protective order?
·
The defendant
may not obey it.
·
Often, the
time around leaving or taking legal steps can be a very dangerous time for
domestic violence victims. Extra safety precautions should be taken during this
time.
·
Unless there
have been modifications to the order, it prohibits all contact between
the defendant and the victim. In one way, this is helpful because the defendant
can’t coerce the victim into taking him back or dropping the order. However, it
can be difficult to be in a couple for a lengthy period of time, then cut off
all contact with the abusive partner. It can also be a challenge to arrange for
children’s visitation through a third party.
Who
can petition the court for a protective order?
Anyone who is being abused by a:
®
Spouse,
ex-spouse, person cohabiting with the victim, or a person who formerly shared
the same residence with the victim
®
Parent or
other persons related by consanguinity (blood) or affinity (marriage) other
than minor children who reside with the defendant (this means a minor child
cannot get a protective order against a parent)
®
“Intimate
partner”: persons who are or were involved in a romantic relationship, whether
or not such a relationship was sexually consummated
®
Same sex partners are eligible for protective orders
®
Survivors of sexual assault may also be eligible for protective orders
Where
do you go to get a protective order?
·
Local court
(family division or district court) where the petitioner or the defendant
lives, or the local court where the abuse occurred
·
Superior court
(Haverhill, Grafton County)
·
Either party
can motion the court for a change of venue.
·
Plymouth
Family division hours: 8:00 – 4:00 Monday – Friday, except holidays.
Petitioners are strongly encouraged to arrive before 2:30 to begin filing for
an order.
·
When court is
closed: local police department (telephonic order).A telephonic order is good
only until the end of the next business day. If the plaintiff wants a
protective order beyond that point it must be obtained at the courthouse.
What happens when a victim
petitions the court for a temporary protective order?
·
The plaintiff
must speak with the clerk at the courthouse. The clerk will contact Voices
Against Violence and if an advocate is available, she will arrive shortly. If
an advocate is not available, the court clerk will explain the necessary
paperwork.
·
The advocate
and the plaintiff (victim) will fill out all the necessary forms:
1.
The plaintiff
information sheet contains confidential information regarding the
plaintiff’s address, place of employment and phone numbers. The defendant does
not have access to this information.
2.
The Family
Division intake form is used to gather information for statistical
purposes.
3.
The defendant
information sheet has information regarding how the local police can best
serve the defendant.
4.
The Domestic
Violence – defendant information sheet is entered into the NCIC, a national
computer database. It contains a physical description of the defendant.
5.
The Domestic
Violence petition contains the information the judge needs to make a
decision about the protective order. Attached to this may be an additional page
for writing the statement.
·
When the forms
are completed the advocate and the plaintiff should bring them to the clerk,
who will notarize the Domestic Violence Petition.
·
The clerk will
then give the petition to the judge in the building if the judge is not
involved with another hearing. If a judge is not in the building the clerk will
fax it to a judge in another court. This can take some time, so be prepared to
wait a while.
·
The judge will
look over the petition and may or may not ask to speak directly with the
plaintiff, either over the phone or in chambers.
·
The judge will
make orders forbidding the defendant from having any contact with the plaintiff
and will make a decision regarding temporary custody of the minor children.
Decisions regarding permanent custody of the children, child support, and
visitation will be made at the final hearing.
·
Temporary
orders are granted ex parte, that is, without the presence of the other
party.
·
If the order
is denied the judge must tell the plaintiff the reasons for denying the order.
·
If the order
is granted the clerk will give the plaintiff a copy of the temporary order and
the Domestic Violence Petition.
·
The clerk will
then assign a date for the final hearing, which will take place in about thirty
days. The defendant does have the right, however, to ask to have the hearing
within 5 days.
Under what conditions will a judge grant a temporary or permanent protective order?
·
A judge needs
to make sure the petitioner fits the criteria as someone who can apply for a
protective order and that the petitioner is applying in the correct
jurisdiction.
·
A judge will
grant a temporary restraining order if the victim can indicate there is an immediate
and present danger of further abuse by the defendant.
Immediate
and present danger should include information such as:
® Specific events that occurred recently
leading the victims to seek a protective order
® Any threats, physical harm, or intimidation
the victim experiences
When
does the restraining order go into effect?
·
The order is
valid once it is granted by a judge.
·
The police
will not enforce an order until it has been served on the defendant.
How do the police serve a
defendant?
·
The court
clerk will fax a copy of the order to the police department of the town where
the defendant lives.
·
The police
will serve the defendant as soon as they have received the protective order.
·
They will
serve the defendant at work, at home, or any other place the defendant may be.
·
The police
will take away any weapons in the defendant’s possession.
·
They will
inform the defendant of the right to request an expedited hearing.
·
They use the
information on the defendant information sheet to serve the defendant quickly
and easily.
What
is an expedited hearing?
·
The defendant
has the right to request the court to change the date of the hearing to one
that is closer the time the defendant was served.
·
This hearing
must take place within five days of the defendant’s written request
·
It is common
for defendants who contest child custody to request the expedited hearing.
·
The court will
inform the plaintiff of the defendant’s wish, either by phone or by mail.
What
happens at a final protective order hearing?
·
The judge
hears both sides. The plaintiff needs to tell the judge exactly why final
orders should be granted. The defendant has the opportunity to object to these
orders.
·
Both the
defendant and the plaintiff have the opportunity to cross-examine each other.
·
The plaintiff
may bring any evidence of the abuse (i.e., police reports, medical records, or
witnesses).
·
Victims may
request advocate accompaniment to court.
·
If the
defendant does not appear, the court may grant the order, assuming that the
defendant does not object to there being an order in place. The defendant will
be asked to notify the court within ten days to explain the absence if one
wishes to contest the decision.
·
If the
plaintiff does not appear at the final hearing, the case will be most likely be
dismissed. The plaintiff also has ten days to explain the absence if one would
still like an order to be issued.
·
A final
hearing will not take place until the defendant has been served.
What
happens if the protective order is violated?
·
It is
important to report any violations of the protective order to the police as
soon as possible. Keep track of all violations.
·
The protective
order restricts the defendant’s behavior only. The plaintiff cannot be arrested
for violating an order. However, the plaintiff may be arrested for
harassment if contact is made with the defendant.
·
Temporary
reconciliation does not revoke the order.
·
Police are
mandated to arrest upon criminal violation. They may arrest without a warrant
within six hours of the alleged crime.
·
If a civil
violation occurs (i.e., failure to pay child support) the plaintiff may file a
motion of contempt with the court. The plaintiff may also file contempt motions
if a criminal violation occurs and an arrest is not made.
What
if the plaintiff and the defendant wish to reconcile?
·
The plaintiff
may petition the court to drop the protective order at any time.
·
The plaintiff
would need to go the court and request this. There is a short form that asks if
the plaintiff is being coerced or threatened into dropping the order.
·
A judge may
choose to speak with the plaintiff.
·
The judge may
request that the plaintiff speak with an advocate before dropping the order, to
make sure a safety plan is in place.
Can the defendant petition the court for a protective order
and will the court issue mutual protective orders?
·
The defendant
has the right to request a protective order, but one will only be granted if
the criteria are met to receive one.
·
On occasion
the court will issue mutual temporary protective orders, but it is rare that
permanent mutual orders will be granted.
·
If the parties
have orders against each other the final hearing will involve taking testimony
on both of those orders.
What
if the plaintiff wishes to modify the protective order?
·
The plaintiff
may request modification of the orders at any time.
·
A modification
may include a change in the visitation schedule or other problem areas.
·
The plaintiff
will need to file a motion to modify at the court.
·
The judge has
the right to deny any motions to amend.
What is a DOVE attorney and under what conditions would
someone need a DOVE attorney?
·
DOVE stands
for: The Domestic Violence Emergency Project.
·
A DOVE
attorney assists the plaintiff with the final protective order hearing.
·
A DOVE
attorney may be needed in cases where the defendant has an attorney or custody
is disputed, and there is a heavy chance that the order may not be granted.
·
As DOVE
resources are limited, victims should speak with a Voices advocate to see if
they are financially and case-type eligible.
Where
is the protective order valid?
·
A protective
order is valid anywhere in the United States under a federal statute called
“Full Faith and Credit”.
·
It is a good
idea for the plaintiff to carry copies of the restraining order at all times and
to register the protective with the local police and court if the plaintiff has
moved to a new town.
What
is an equity order?
·
It is a
restraining order available to persons who do not qualify for a protective
order under the domestic violence statute. In most cases, they are orders for
people who are not in an intimate or family relationship.
·
An immediate
and present danger of further abuse still needs to be present.
·
These orders
can only be obtained at superior court, and there is a fee.
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