Defending Against an Order of Protection: Five Points to Consider Before Requesting a Hearing in Arizona

You and your spouse have commenced divorce proceedings and are in the process of negotiating an appropriate parenting time schedule for your children.  The next day, the doorbell rings, and when you answer it, a police officer serves you with an Order of Protection.  The Order of Protection prohibits you from seeing or even communicating with your spouse and your children. You are ordered by a police officer to quickly collect your belongings and move out of your house.  Confusion, anxiety, and resentment quickly overwhelm your mind and body. As you frantically collect your belongings, you wonder: How can I make this all go away? How will I redeem myself and clear my name from the stain of the false and horrendous allegations made against me?  Before you take any action, including requesting a hearing on the Order of Protection, here are five points to consider if the Order of Protection was issued in Arizona:

  1. Under A.R.S. § 13-3602, an Order of Protection is valid for one year from the date it is served. Therefore, if you take no action and do not violate the terms of the Order of Protection, the Order of Protection will be automatically dismissed after 365 days.
  2. There are no direct criminal consequences associated with being served with an Order of Protection. However, if you violate the terms of an Order of Protection, criminal charges may be commenced against you for the violation.
  3. You are entitled to one evidentiary hearing to dispute the allegations in the Petition for Order of Protection. If, after a hearing, the Court determines that the evidence presented by the plaintiff (your spouse in the situation described above) is insufficient to sustain the Order of Protection, the Court will quash the Order of Protection.  The Court also has the authority to modify an Order of Protection to allow for certain types of contact or communication if appropriate.
  4. The burden of proof in an Order of Protection hearing is different from that of a criminal trial. In a criminal trial, the allegations must be proven against you beyond a reasonable doubt.  However, in an Order of Protection hearing, the plaintiff must only prove the allegations against you by a preponderance of the evidence – that is, the plaintiff must persuade the judge that the allegations are more likely true, than untrue.  Additionally, the plaintiff only has to prove that a single, isolated act of domestic violence occurred, under A.R.S. § 13-3601, for the Court to sustain the Order of Protection.
  5. A Court’s decision whether to uphold or dismiss an Order of Protection after a hearing is final, except for your right to an appeal. A finding of domestic violence may result in the loss of your legal decision-making or parenting time rights regarding your children and could have long-standing consequences beyond the one-year duration of the Order.

If you are served with an Order of Protection, take the commands in the order and consequences seriously.  You should also consult with a family law attorney to assess the potential defenses that may be available to you.  Discussing the circumstances of your situation with an experienced attorney before requesting a hearing will ensure that you are in the best possible position to defend against the allegations and clear your name.

About the Author:

Brian H. Merdinger is an Associate in the Phoenix office at Dickinson Wright. He primarily focuses his practice on Commercial & Business Litigation and Family Law. Brian may be reached in our Phoenix office at 602-889-5353 or by email: Visit Brian’s bio here.