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.