Restraining Order Lawyer in Overland Park
In Kansas, the law allows individuals who have been abused, stalked, sexually assaulted, or victims of human trafficking to get a protective order against the person or persons committing those actions. This is done through Protection From Abuse and Protection from Stalking Orders. These orders, commonly known as a PFA or PFS, are different from criminal prosecution or civil orders that may come up in your divorce or family law case. They are intended to provide quick and immediate protection for those in need. This page focuses on PFAs and PFSs, written by a Protection from Abuse Attorney.
While the intent may be to provide a quick result, oftentimes that is not the case. Your initial hearing will be shortly after the petition is filed. But, the final trial may be weeks or sometimes even months after that. In the meantime, if you were the party served with the restraining order, your life may be affected in huge and lasting ways. That’s why it is important you contact a protection from abuse lawyer immediately to figure out your next steps.
When a person files for a protective order, they are sometimes granted temporary or emergency orders for protection. These orders will be in place until at least the first court date and possibly up until the final trial. As such, temporary orders can impact you for some time. And depending on the specific orders in place, this could have a huge impact on your day-to-day life. It can affect where you live, whether you get to see your kids, whether you have access to your personal belongings, and several other areas of your life. It is possible to modify these orders, but only if you know what you are doing, hence the need for an attorney who specializes in these cases.
Eventually, you will arrive at the day of trial. The plaintiff or person who filed for the protective order, bears the burden of proof, and must meet that burden to get the judge to enter a final order for protection. But the defendant can put on evidence to defend his or herself. Many people often assume that because these proceedings are shorter and appear less formal than a full-blown criminal trial, the rules will be relaxed. That is not the case. The judge will expect you to know and follow the proper rules of evidence, procedures, and local courtroom policies. Without the assistance of an attorney, you can quickly find yourself in over your head. That’s why it is so important, almost even necessary, to have an attorney with you.
Whether you are seeking an order, or you have been served with papers and now need to defend yourself, you will want to proceed with an attorney by your side during the process. You need somebody who understands these laws, knows the court’s policies and procedures, and can help you navigate the process to help you get the right result. Our office can assist you with that.
How do I get a protection from Abuse Order?
Kansas law, specifically the Protection from Abuse Act, allows for a victim of abuse to file for a court order restraining their abuser from further contact. The victim of abuse (or a responsible adult, if the victim is a minor) begins the process by filing a petition with the district court. The process of filing a Protection from Abuse Order, up to the hearing (which is covered on another web page) is outlined below.
Beginning The Process: Filing A Petition, Completing Service and Scheduling a hearing.
Section 60-3104 outlines how a victim of abuse may begin the process of getting an order. The individual must file a petition in the district court, using forms that can be obtained from the clerk of the court (or through legal counsel). The filing party must allege the physical abuse he, she, or the child has suffered. In an effort to make these orders more accessible, no “docket fee” is charged for these filings. Other fees, however, may be required.
After the petition is filed, the alleged abuser must be served. Kansas generally allows for a party to be served via certified US mail, so long as the receiving party completes a return receipt. However, because of the condensed timeline to get a Protection from Abuse Order, serving of the petition must be done by “in person.” This means an actual person (who falls within the statutory guidelines) must physically hand the petition to the defendant.
Finally, a hearing will be scheduled for no later than 21 days after filing. It is important to note that the date is set upon filing, not upon service, unlike other areas of law. This is done to ensure determining if a Protection from Abuse Order is necessary occurs quickly. In some situations, however, the condensed timeline is still not fast enough to protect victims of abuse.
Emergency And Temporary Orders
In extreme situations, an emergency order or temporary order may be granted. These orders are ex parte motions, meaning the alleged abuser is not notified or present when the determination is made. This means the defendant will likely never have a chance to offer any explanation or argument before the order is granted. Because of this possibility, these orders are reserved for extreme situations and are very brief even when granted.
An emergency order is the more extreme and rare option, and is controlled by Section 60-3105. These orders are granted immediately, by bringing the paperwork to the judge at home, much like how a late-night warrant is signed. They require a showing of “good cause,” almost always in the form of immediate and present danger to the plaintiff and generally following a criminal incident of assault. The order generally will ban the defendant from seeing the victim, including banning the defendant from residing in the shared residence. This order only lasts until the close of the next business day for the court (5:00 PM). The short duration highlights the purpose of emergency orders: to temporarily restrain the defendant and allow for the plaintiff to pursue a temporary order when the court is officially open.
Temporary orders are much more common. A temporary order may be requested by the filing party. The individual must show “good cause,” which is again generally immediate danger to the plaintiff. Temporary orders are also conducted ex parte. These orders last until the date and time of the hearing; at the hearing, they will either be replaced with a “full” order or simply expire removing all restrictions upon the defendant’s conduct. The court can require a security deposit be paid by the filing party. This is generally only done when court has good reason to believe the order is being done for illegitimate purposes.
Protection from Abuse Orders may be necessary before, during, or after divorce proceedings. They may also be necessary even absent any martial relationship. The law provides for immediate protection of those who are suffering abuse. The condensed timeline allows for relatively quick determination of the need for these orders, but when faster action is needed, emergency and temporary orders are also available.
I've been served with a protection abuse papers, what do I do?
Getting served with paperwork from a law enforcement officer is an unsettling and unfamiliar event for most people. Oftentimes, being served with a PFA or PFS comes up following a big event, altercation, or separation. Other times still, it can totally blind side a person. Either way, it leaves most folks with a feeling of uncertainty.
That feeling is only compounded if it comes on the heels of a divorce filing, separation, or an arrest. This problem is even further exacerbated if you are served with temporary or emergency orders which can drastically change how you live your life until a judge tells you otherwise. That’s why it is important that you contact an attorney as soon as you receive this paperwork. You need somebody who can tell you what the paperwork means, what to expect at your first hearing, how long this process will last, what your options are, and how you are supposed to live your life until it is over.
Time is of the essence to get an attorney. Unlike in a criminal case, you have no right to an attorney and one will not be appointed for you. Therefore, if you want an attorney, you must contact one right away. If you do not have time to get an attorney before the first hearing, you must appear and request a continuance to retain an attorney. But you need to do this as soon as possible as there may not be any further continuances granted.
Finally, if you are facing criminal charges involving the same people or events as your PFA/PFS case, you absolutely need to speak with an attorney. Your criminal defense lawyer may not be able to assist you with your PFA/PFS. The same thing applies if you are in the middle of a divorce or family law case and a PFA/PFS comes up. Our firm is a one-stop-shop. We can handle all three matters for you. This approach is beneficial to you as there is only one office that you will need to supply information to and that same office will keep you updated on all upcoming hearings and proceedings in each of your cases. Additionally, we are able to schedule, conduct, and proceed with each case in a way that will hopefully help your position in all matters. If you have more questions, read on, or call any time to set up a consultation.
How do Protection from Abuse orders work in Johnson County?
Under Section 60-3107, any individual who is subject to physical abuse may request a Protection from Abuse Order to be issued by the court. The order operates to protect the moving party from abuse immediately. It can accomplish this in a number of ways, including the forcing the defendant out of the home or even requiring the defendant to provide alternative housing for the plaintiff. Below is a brief overview of what exactly a Protection from Abuse Order is and does.
When To File?
A Protection from Abuse Order is a completely independent filing that can be requested after any physical abuse. There is no requirement that the request come within the context of a pending divorce or criminal abuse charge. In Crim v. Crim, the Kansas Court of Appeals held that even ongoing divorce proceedings do not prevent the filing for this order. The court noted that the proceedings may be slightly duplicative, but the point of the Protection from Abuse Act, which created the orders, is to protect individuals from abuse in all scenarios. Thus, even though potentially similar litigation is ongoing, a victim of abuse can still file for a Protection from Abuse Order.
Who Can File?
Section 60-3104 outlines who may file for the order. The individual seeking the order must be “an intimate partner or household member” of the alleged abuser. This updated language includes unmarried couples that do not currently live together, as well as any individual that lives in the same household of plaintiff, regardless of relation. When the abuse is directed towards a minor, any adult living with the child may file for the order on the child’s behalf. The courts have interpreted this liberally. In Baker v. McCormick, the court even allowed grandparents to file on behalf of their grandchild once the mother moved in with them following the abuse. Again, the court fixated on the intended purpose of the orders, which was to prevent abuse to the greatest extent possible. Thus, even though the mother did not want to motion for the order, the grandparents could file for the order on the child’s behalf once the child lived in their home.
Why To File?
These orders are designed to prevent physical abuse. Thus, emotional abuse alone is not enough to get such an order. Threats of physical abuse, even if not yet followed through, are capable of requiring such an order. Also covered under the definition of “abuse” is any sexual conduct with an individual under the age of 16. Courts have reached difficulties when the alleged abuse is claimed to be discipline by one parent and abuse by the other. The leading case in this area is Paida v. Leach, decided by the Kansas Supreme Court in 1996. This case held that physical discipline only rises to the level of “abuse” when it results in “substantial physical pain or physical impairment.” In Paida, the father got into an argument with his teenage children. He restrained his son by holding his arms behind his back and disciplined his daughter by placing soap in her mouth. Neither child suffered any lasting physical injury, and the Kansas Supreme Court was unwilling to find that the actions reached the level of abuse rather than what a parent may elect as a manner of discipline. The court was careful to note that such physical discipline can reach the level of abuse, if it meets the announced standard.
What Does The Order Require?
An order will always require the defendant to stop any abusive actions. A violation of that order will bring about criminal charges against the defendant. The order may also require additional obligations of the defendant, as outlined in Section 60-3107. The court may order the defendant to vacate the home or provide alternative housing to the plaintiff or children. The defendant may be forced to attend counseling, as well. Additionally, a defendant may be responsible for the legal fees the plaintiff incurs in gaining the order.
It is important to remember that an order is not automatically granted upon filing a petition. The party alleging abuse will have to prove those actions to the court in a hearing. And the defendant will have a chance to defend him- or herself against those accusations. If you feel an order will be helpful or you need to respond to an order filed against you, contacting capable legal counsel is a must.
What happens at a PFA or PFS hearing?
After filing a petition for a Protection from Abuse or Protection from Stalking Order, a hearing is scheduled. This hearing is held no later than 21 days from filing, and this period is not extended by the granting of an emergency or temporary order. Any temporary order will expire at the beginning of the hearing and may be replaced by a “full” or final order if the plaintiff is successful at the hearing. A brief outline of what to expect at this kind of hearing is below.
Purpose Of Hearing: The hearing is used to determine if a PFA or PFS Order is necessary. To establish that an order is needed, the plaintiff must prove to the court that physical abuse or the threat of physical abuse took place (PFA) or that two or more separate incidents of stalking or harassment took place (PFS). The plaintiff accomplishes this by producing evidence, which the defendant is allowed to cross examine and attack. Basically, each side will get a chance to tell the story as he or she perceived it.
The plaintiff must prove the allegations by a “preponderance of the evidence.” This is a much lower standard than criminal abuse, which requires proof beyond a reasonable doubt (roughly 95% certainty). This hearing requires only that the allegations be more likely than not (51% or just barely in the plaintiff’s favor). It is also important to note that it is the plaintiff, the party which requests the order, that must prove the allegations. Naturally, a defendant will want to offer up his or her own information and evidence, but strictly speaking this is not a requirement. If the judge doesn’t believe anything the plaintiff says, the defendant would prevail even without putting forth any evidence. Again, this is generally not a wise strategy and defendants will generally want to let their version of the occurrence be heard. However, you should consult with an attorney prior to the hearing as it may not be advantageous to defend yourself at this hearing if there is a possibility of criminal prosecution based on the same events.
Evidence At The Hearing: Each party will put on its own evidence and attack the credibility of the opposing evidence. The rules of evidence—rules that dictate what can and cannot be offered for consideration in court—apply in these hearings, just as they do at most civil and criminal trials. The court will weigh the evidence and determine which testimony and evidence is most believable. This is in contrast to most trials, where a jury is used to weigh each side’s evidence. PFA and PFS matters are always tried by the judge, rather than the jury. As the Kansas Court of Appeals noted in Myers v. Myers, the credibility determinations made by the court are not reweighed upon appeal. Thus, it is extremely important to ensure capable counsel are available to put on evidence and argue a convincing case.
Decision Following The Hearing: After hearing all the evidence and argument from each party, the judge will make a decision. The judge can either decide to issue a final Protection from Abuse Order or to dismiss the petition without granting such an order. If an order is granted, the defendant will be restrained from abusing or stalking the plaintiff for a period of up to one year. The defendant may also be required to move out of the shared home or even provide alternate housing for the plaintiff, including bearing the costs of that housing. It is also possible for the court to find that abuse occurred against each party. If both parties are found to be aggressors that committed abuse, each party may be granted an order prohibiting the other from abusing or residing with each other.
The hearing for a Protection from Abuse or Protection from Stalking Order is very similar to a civil or criminal trial. All too often, litigants mistake the quick nature of the hearing as an indication that the matter is more “relaxed” than other court settings. This is far from true. A litigant can quickly find themselves in trouble without proper knowledge of the intricacies of the legal system. That is why it is extremely important that capable legal counsel represent individuals in these hearings. Thoughtful strategy and court experience ensure the correct result is achieved.
What if I have both a Protection order case and a Criminal Case?
Many people often wonder if they can face criminal prosecution for the same allegations or events that their PFA or PFS action is based on. The answer is quite simple: yes, you can.
A PFA or PFS is a civil action that one person (the plaintiff) files in order to get a protective or restraining order against another person (the defendant). Criminal charges are filed by the State of Kansas through the local prosecuting agency (either a city prosecutor’s office or the county/district attorney’s office.) It is not uncommon that a person who has been served with paperwork for a PFA or PFS to also face criminal charges for the same allegations and events.
If you have already been arrested or received notice of criminal charges you absolutely should contact an attorney about your PFA or PFS. Many criminal defense attorneys will not represent you on your PFA or PFS, even if the events are related. But that does not mean the PFA or PFS is any less important or less complicated of a proceeding. It is still a legal proceeding where rules of evidence and court procedures apply. It can also have an impact on your criminal case. If you don’t know what you’re doing, that impact can be to your detriment. Therefore, you should make sure to have counsel for both matters and make sure those attorneys are working together to your benefit.
Many times, somebody will call us and tell us they have not been contacted by the police or that charges have not been filed yet. This leaves these individuals with a false sense that no charges will be filed. It is common that criminal charges will be filed after a PFA or PFA is filed. This is simply because the process of investigating a potential crime, creating reports, and sending it to the prosecutor for review and charging is a longer and more complicated process than filing for a PFA or PFS. Therefore, even if no charges have been filed yet, it is always something you need to be aware is a possibility.
Because there is a possibility that criminal charges could be filed, individuals should not charge in to court to immediately defend themselves in the PFA or PFS case without consulting an attorney. Doing so creates a record that can be used against you in your criminal case. Thus, if you’ve been served with papers you should contact an attorney immediately and consult with them about the possibility of criminal charges and seek advise on how to proceed.
It is also common for a PFA or PFS case to come up between parties going through a divorce or other family law case. Or perhaps, the events that caused a party to file a PFS or PFA in the first place also triggered a divorce or separation. Either way, the same parties may have an ongoing family law case. This could include a divorce, paternity, custody, or child support action. If you find yourself in a situation where you have both a PFA/PFS case and family law matter with the same party, it can be complicated.
Johnson County has a local rule where the judge overseeing your family law case will also take up your PFA/PFS in most situations. However, that does not mean that your cases are combined. You still need to deal with the PFA/PFS and it is still handled according to those specific rules. That means that unlike in a family law case where a judge may decide an issue based on “the best interest of the child,” the judge will still make his or her final ruling on a PFA or PFS case based on whether the plaintiff met his or her burden of proof.
In order to make sure you know all of these rules, the burdens that must be met, and the complications that can arise with two pending cases, it is always advisable to contact an attorney. Luckily, our office handles both family law and PFA/PFS cases. If you need help with either or both matters, call our office today.
If you are an individual who finds yourself with a PFA/PFS case, a family law case, and criminal charges, the need for an attorney cannot be understated. Call us immediately and we can talk to you for your options. Our team is set up to handle each of your cases. Having all of your matters handled by the same team assures you that no case will move forward to the detriment of another and that you are fully aware of all possibilities and potential consequences before proceeding. Call us today for more information and to begin this process.
How long does a Protection from Abuse Order last?
If a final order is entered following a hearing, that order is in effect immediately and it lasts for one year from that date. The terms from that order and its duration are then set unless one of three things happen:
A party successfully appeals the final order to the Court of Appeals;
A party moves to modify the final order and the district court grants modification; or
Within the timelines allowed by statute, a party files for an extension of the final order.
Appeal
Appealing a final PFA or PFS order is an extremely difficult task. In Jordan v. Jordan, the Kansas Court of Appeals noted that the trial court is given extreme deference in making its determination when issuing final orders of protection. Because of this deference, reversing the decision is virtually unheard of.
Modification
A final PFA order can be modified if a defendant can show there is a change in circumstances which justifies such modification. This means the party seeking a change needs to show more than simply saying they think the judge got it all wrong. Circumstances that could justify modification include completing any programs or reaching an agreement with the plaintiff to modify the terms. The court will hold a modification hearing and at that hearing the party seeking modification carries the burden to prove the circumstances have changed to justify modifying the order.
Modification is never guaranteed and is not very common. That is why it is imperative that during the initial PFA proceedings, you work to either fight the order or to come to some sort of mutual agreement that is easier to live with and change if necessary.
Extension
Finally, while the order that is issued on the date of the final hearing will only last for one year from that date, the law allows for extensions of the final order for one year. Further extension is then allowed for an additional two years or lifetime.
In order to get an extension of the final order, the protected party must file a timely, certified motion with the court requesting the extension. Timely means that you must file the motion with the clerk of the district court prior to the end of the initial order. A copy of the motion must then be mailed to the defendant. The court may then grant an extension of one additional year if the court finds good cause and that an extension is reasonably necessary for the protection of the plaintiff. In other words, a court can give an extension at its own discretion, and not after a new finding of the preponderance of the evidence.
A plaintiff can also file a timely and verified motion requesting an extension of two years or up to the lifetime of the defendant. In order to receive this longer extension, the timely and verified motion must be personally served on the defendant and then the matter must be set for a hearing. Further, the plaintiff must show one of the following:
The defendant violated the protective order;
The defendant has previously violated a protective order; or
The defendant has been convicted of a person felony committed against the plaintiff or any member of the plaintiff’s household.
At the hearing, the defendant has the opportunity to present evidence and cross-examine the plaintiff’s witnesses. If the court, upon hearing all of the evidence, determines by a preponderance of the evidence that the defendant did in fact commit one of the three actions listed above, then the extension of two years to lifetime may be granted. Because this hearing could result in permanent, life altering ramifications on your personal life and your rights, it is imperative that you contact an attorney immediately if you have been served with papers for such a hearing.
Can I file a Counter Petition to get a Protection Order as well?
Yes, it is possible to file a counter-petition for Protection from Abuse or Protection from Stalking. In order to be official, a counter-petition must be filed with the district court and cannot simply be raised as a defense during the course of the case or at trial. The Defendant filing the counter-petition must include the necessary information to meet the elements of a PFA or a PFS just as the initial filer did. Then, the Defendant will bear the same burden of proof at trial of preponderance of the evidence if he or she wants the judge to enter a final order against the plaintiff.
If you are seeking to be protected or cease all contact with your accuser, filing a counter-petition is not your only option. It is possible to enter into a mutual no contact order or other similar arrangement. These agreements can be generic and simply use the language of a normal PFA or PFS and apply to both parties. Or these agreements can be narrowly tailored to meet with the specific facts and circumstances of a case. These are oftentimes advantageous in certain cases or with certain parties. Doing this can allow for necessary contact only or it can be done to avoid some of the consequences of a traditional PFA/PFS like the loss of the right to own or possess a firearm or the threat of criminal prosecution.
Before filing a counter-petition or going forward with any hearings in your PFA or PFS case, it is always best to sit down with an attorney and thoroughly discuss all of your options. After hearing about the specific facts of your case, understanding the relationship between the parties, and knowing your priorities, your attorney will be able to tell you what options you have available to you and advise you accordingly. Then you can make an informed decision and work with your attorney to make it happen.
What happens if I violate a protection order?
terms dictated by the court will result in negative legal consequences. Section 60-3107 outlines the liability that can arise from violation of these orders. The details of these consequences are outlined below.
Criminal Trespassing
When the order prevents a party from residing or entering a residence, any violation of the order will be considered criminal trespassing under Section 21-5808. Criminal trespass is a class B nonperson misdemeanor and will require a trial in which the state proves beyond a reasonable doubt that the defendant committed the trespass. When the trespass is in violation of a Protection from Abuse Order, the defendant must be sentenced to at least two days in jail (subject to any probation granted by the court). This is implemented in effort to prevent a further violation of the order by forcing the defendant to serve a “cooling down” period.
Criminal Assault and Battery
If the individual violates the order by more directly interfering with the protected party, more serious criminal charges will follow. When a defendant places the protected party at a considerable risk of being abused, molested, or having their privacy right interfered with, the defendant has committed an assault. Notice that no actual contact is needed, meaning a violation of the order may constitute an assault even if the defendant never makes direct contact with the protected party. Assault is a class C person misdemeanor and requires the state to prove the crime beyond a reasonable doubt. It is important to note that simply violating the order is not enough; the assault requires the violation to include the considerable risks. The Kansas Supreme Court noted this distinction in Key v. Hein, Ebert & Weir.
When the defendant goes beyond placing the protected party at conservable risk of abuse, molestation, or invasion of privacy by actually committing one or more of those acts, a criminal battery charge will result. The key difference here is the completion, rather than the threatening, of the prohibited act. Battery is a class B person misdemeanor. As a criminal offense, the state must prove the crime beyond a reasonable doubt. When the victim (and protected party) is a family or household member, the defendant can also be charged with domestic battery. This offense is also a class B person misdemeanor, requiring at least two days in jail and a fine between $200 and $500.
Violation Of Protection Order
Any violation of an order is also an independent crime under Section 21-5924. These violations are independent of any trespassing, assault, or battery charge an individual may face. This is because this crime focuses of the failure to obey the order at all, rather than how the order is violated. This crime is a class A person misdemeanor. The defendant must knowingly violate the order to be found guilty of this crime.
Contempt
Section 60-3110 also allows for a charge of contempt when a defendant violates a Protection from Abuse or Protection from Stalking Order. When a defendant is alleged to have violated the terms of the order, the court will require that defendant to appear before the court to argue why he or she should not be held in contempt. Unlike a formal criminal charge, the defendant does not have the benefit of the high standard of beyond a reasonable doubt. Instead, the defendant must prove compliance with the order. If the court is unconvinced, it may issue an appropriate remedy. This can include fines, legal fees, and even jail time. Unlike criminal sentencing, the court is granted great leeway in determining the amount of a fine or how long to sentence an individual. However, the goal of contempt is to punish the party for not respecting the authority of the court, so most sentences or fines will be comparatively less than a criminal charge.
Violations of a Protection from Abuse Order or Protection from Stalking Order are serious matters. A single violation can result in multiple criminal charges or expensive fines. It is important to seek out legal counsel if an order is issue against you, so that you understand what activity is off limits and could result in these legal consequences. If it is too late to prevent a violation, defending yourself must become your primary objective. To best do this, contact experienced legal counsel right away. Our firm is well-versed in these matters and more than happy to answer any questions you might have and represent you in the restraining order and criminal proceedings that you might be facing.
What happens if children are involved in the PFA?
FILING ON BEHALF OF A CHILD
In Kansas, a person can seek a protective order on behalf of a child. This means the order can be exclusively for the child or it can include the child as well as others. The following people are the only people who can file a PFA or PFS on behalf of a minor child:
The child’s parent;
An adult residing with the child; or
The child’s court-appointed legal custodian or guardian
In order to file on behalf of a child, the person you want restrained must be an intimate partner or a household member, and one of the following has occurred:
The defendant physically hurt you or the minor child on purpose;
The defendant tried to physically hurt you or the minor child;
The defendant recently threatened to physically hurt you or the minor child;
The defendant engaged in any sexual contact or attempted sexual contact with you or the minor child when such person was incapable of giving consent; or
The defendant engaged in sexual conduct with the minor child (only for those under 16 years old).
Any time children are involved, the filing party must also complete a UCCJEA affidavit and file it with the court. If there are already legal proceedings pending involving your child or children, that may have an effect on the court that will hear your PFA or PFS case.
DISCIPLINE/CORPORAL PUNISHMENT: WHEN IS IT APPROPRIATE TO FILE A PFA FOR YOUR CHILD?
This is a common question that comes up in family law matters when two parents disagree on methods and forms of punishment. Sometimes one parent feels another parent has gone too far and is concerned for the child. That parent might consider getting a PFA against the other parent, protecting their child. The short answer to whether this is possible is also the answer to most legal questions: it depends.
In 1996, the Kansas Court of Appeals considered the issue of whether corporal punishment (physical discipline) by a parent against a child constitutes “abuse” and is grounds for a PFA against the parent imposing that discipline. In considering the purpose of the Protection from Abuse Act, the Court decided that not all instances of discipline that causes bodily harm qualifies. They ruled that there “undoubtedly are instances when discipline of children escalates into domestic violence which would warrant relief under the Act…” However, they determined this was not the purpose of the act and thus not all instances of physical discipline automatically qualify. “The State’s intrusion should be limited to injunctive relief where parental conduct causes more than minor or inconsequential injury to the child…bodily injury under the Act requires a finding of substantial physical pain or an impairment of ap physical condition.” Paida v. Leach, 260 Kan. 292, 300-1 (Kan. 1996).
In short, a line must be crossed in order for the discipline to become abuse and thus qualify for a PFA. That determination needs to be made on a case-by-case basis. The circumstances taken into consideration on each case, aside from the level of injury or pain inflicted, includes the age of the alleged victim and his or her relationship to the alleged abuser.
If you ever see behavior or actions towards your child that concern you, but you don’t know if you need to involve law enforcement or the courts, you can always call our office. We can listen to what is going on and talk through your options with you.
SEEING YOUR CHILDREN DURING AND AFTER YOUR PFA/PFS CASE
Any time children are involved in a PFA or PFS case, it is best to have an attorney involved. Parties often think that informal arrangements can be set up or family members or friends can be used as intermediaries for exchanges. Such arrangements or agreements can quickly become fraught with issues and could lead to potential violations of court orders. The best thing to do if children are involved is get an attorney, establish clear and concise rules and procedures for parenting time and custody arrangements, and get those rules adopted by the court so that they become enforceable orders.
Once a final order has been issued, this is even more important. Violation of the final PFA or PFS order, even if by accident, could lead to criminal prosecution. Having these arrangements codified in the final court orders eliminates that risk and can help put all parties’ minds at ease knowing there is a set plan that needs to be followed. But this can only be done if everything has been thought out, agreed to, and specifically drafted prior to your final hearing.
Finally, there are other ways to finalize a PFA or PFS case that can allow for two parties to have an order limiting their contact around each other, with an exception of communications or contact for the mutual children. In order to learn more about this option or discuss which option may be best for your case, contact our office and speak with one of our attorneys.