Once an individual files a petition for a Protection from Abuse Order, the defendant will be personally served. This can be a very dramatic experience and it is extremely difficult to know how to react to such news. Often, a temporary order will require the defendant to avoid contact with the plaintiff or even forcing the defendant from his or her home. The condensed timeline of these orders makes contacting an attorney very important—the quicker the better. Below is a much simplified outline of what a defendant must do after being served with a Protect from Abuse Order.
Service Of ProcessA defendant will become aware of the petition requesting the order when serviced is completed upon him or her. These petitions must be served in person, rather than by certified mail as other matters may be. The petition may also be accompanied by an emergency or temporary order, meaning restrictions may already be placed upon the receiving individual. The petition will note a date and time for the hearing, which will be very quick—within three weeks. The defendant can challenge the temporary order by contacting the court and providing notice to the filing party at least 48 hours before the hearing. The court may decide to completely dissolve the temporary order or modify it as needed.
The next step will be to prepare for the hearing for the full order. The defendant will need to determine what actions are being alleged and develop a strategy for disproving or discrediting those claims. This will include gathering evidence and determining who will be called to testify regarding the allegations. This activity is very similar to preparing for a trial; however, this all must be done over the course of three short weeks rather than a year or more. It is important to gather sufficient, competent evidence to ensure the full order is not issued.
The HearingA hearing will be held before the district court to determine if a full Protection from Abuse Order will be issued. Again, this hearing is held within 21 days of the filing of the petition. Each side will be allowed to put on evidence and cross examine opposing witnesses. Unlike a criminal trial, the allegations of abuse only need to be proven by a “preponderance of the evidence,” meaning the judge only needs to believe the plaintiff any bit more than not to issue the order. This lower threshold, coupled with the condensed timeline, makes pro se representation (self-representation, rather than hiring an attorney) a very risky endeavor. After all the evidence is presented, the judge will render a decision. The order may require providing alternative housing for the plaintiff, vacating the home, and forgoing any contact with the plaintiff, as well as several other conditions or obligations. These obligations can last up to one year.
Modifying The OrderAfter an order is issued, the defendant may attempt to modify its terms. The first option is via appeal. This is an extremely difficult hurdle to overcome. In Jordan v. Jordan, the Kansas Court of Appeals noted that the trial court is given extreme deference in making its determination and reversing the decision is virtually unheard of. A better option is via requesting a modification. A defendant cannot ask for a modification simply because he or she thinks the court got it wrong. Instead, there must be some change in circumstances to justify the modification. This can include completing any programs or reaching an agreement with the plaintiff to modify the terms. A modification hearing is held and the party seeking modification (in our case, the defendant) must prove that the circumstances have changed to justify modifying the order.
Finally, even without attempting to modify the order, the defendant must be prepared for other related litigation that may arise. The plaintiff may request the order be extended for up to one year prior to its expiration. The court will hear evidence to make a decision on whether the order needs to be extended or not. Further, any violations of the order will produce additionally legal consequences. These include crime charges and the possibility of a lifetime extension of the order.
When an individual is served with a petition for a Protection from Abuse Order, action must be taken quickly. The condensed timeline makes navigating these orders extremely difficult and leaves little room for error. Contacting legal counsel should be the first thing anyone receiving such an order does. Failing to employ an experienced attorney can result in eviction from the home, being banned from contacting loved ones, and potential criminal liability for any violations of the order.