Can I File A Protection From Abuse Case While My Divorce Is Going On?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
Crim v. Crim, 40 Kan.App.2d 367
This case addresses the following issue:
Can you file a petition of protection from abuse during an ongoing divorce proceeding?
This case explored the issue of whether a petition of protection under the Protection From Abuse Act (PFAA) can be accepted while ongoing divorce proceedings are pending. The Court of Appeals concluded that pending divorce proceedings do not bar a spouse pursuing a claim under the Protection From Abuse Act.
The appellant (Cynthia Crim) and the appellee (Brian Crim) married in 2001 and separated in the summer of 2006. In January of 2007, Cynthia filed for a protection from abuse petition against her husband, Brian. Within the petition, Cynthia stated that Brian “willfully placed [her] in fear, by physical threat of imminent bodily injury.” Cynthia alleged that Brian left numerous threatening voice messages, searched for her with the children in an unheated vehicle, and tried to block her on the road with his vehicle. The district court dismissed Cynthia’s petition due to insufficient allegations to establish jurisdiction. The district court found that Cynthia’s allegations did not meet the requirement of the protection from abuse act in establishing the findings of intentionally causing bodily injury, intentionally attempting to cause bodily injury, or the fear of eminent bodily injury by threat. In denying the PFAA petition, the district court concluded that the court took judicial notice of the parties’ prior proceedings in district court over the last 6 months relating to custody and visitation of their child. The district court explained that the parties were instructed to seek modification of the parenting plan entered in the divorce case and to seek mediation to resolve any disputes relating to parenting as was ordered by the judge in the divorce case. Cynthia appealed the district court’s decision.
Cynthia maintained that Brian’s contact with her was behavior that fulfilled the requirement of the protection from abuse act in establishing the findings of intentionally causing bodily injury, intentionally attempting to cause bodily injury, or the fear of eminent bodily injury by threat.
The Court of Appeals went on to conclude that the Protection From Abuse Act is designed to promote protection of victims and to make access to the courts prompt and easy. The court also stated that ongoing divorce proceedings are not a jurisdictional bar to an individual making a claim under the Protection from Abuse Act and that the district court erred in ruling there were insufficient allegations of jurisdiction contained in a protection from abuse petition filed during an ongoing divorce proceeding.
In sum, ongoing divorce proceedings do not exclude one from filing a petition of protection under the PFAA.
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