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.