After filing a petition for a Protection from Abuse 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” 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 Protection from Abuse 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. 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.
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, were a jury is used to weigh each side’s evidence. Protection from Abuse Orders 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 “full” 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 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 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.