In Minnesota, domestic abuse is defined as the following when committed by one family or household member against another family or household member:
1) physical harm, bodily injury, or assault;
2) threats of imminent physical harm, bodily injury, or assault;
3) terroristic threats;
4) criminal sexual conduct; or
5) interference with an emergency call.
In addition to any criminal ramifications for domestic abuse, victims of domestic abuse may petition the court for an Order for Protection (OFP) against the perpetrator, which typically prohibits the perpetrator from contacting the victim or going to the victim’s home and place of employment. This is true even if the victim and perpetrator share a home. If the parties have children together, the victim may also seek temporary custody of their children, supervised parenting time for the perpetrator and child support from the perpetrator. If the victim of domestic abuse is a minor, an OFP can be sought on their behalf. In an OFP proceeding, the alleged victim of domestic abuse is referred to as the “Petitioner” and the alleged perpetrator is referred to as the “Respondent.”
The court will consider the Petition for OFP without notice to the Respondent (“ex parte”) and must accept all allegations in the Petition as true. If the allegations accepted as true would rise to the level of domestic abuse as defined above and the court finds there is an immediate and present danger of domestic abuse based on the allegations, the court will issue an ex parte order prohibiting the Respondent from contacting the victim or going to the victim’s home or place of employment. In this circumstance, the court does not need to order a hearing on the Petition for OFP unless the Petitioner is seeking temporary custody, supervised parenting time or child support, which must be addressed after a hearing. The court will order a hearing if it finds that the allegations rise to the level of domestic abuse, but it does not find that there is an immediate and present danger of domestic abuse. If the court does NOT find that the allegations rise to the level of domestic abuse, it must still order a hearing if the Petitioner requests a hearing in the Petition for OFP.
If the court issues an ex parte OFP and/or order for hearing, the order is personally served by the Sheriff on the Respondent. If the court does not order a hearing, the Respondent must request a hearing on the Petition for OFP within five days of service of the order in order to challenge the ex parte OFP. If the court orders a hearing or the Respondent requests a hearing, both parties will have an opportunity to present their evidence and witnesses to the court at the initial hearing and must be prepared to do so at that time. However, the Respondent may request a continuance of the hearing up to five days if they are served with notice of the hearing less than five days before the initial hearing, which will be granted unless there is a compelling reason not to do so, and both parties may request a continuance at the initial hearing for good cause shown.
If, after the hearing on the Petition for OFP, the court finds by preponderance of the evidence (more likely true than not) that domestic abuse as defined above did occur, it will issue an OFP following the hearing, which will typically be effective for a period of two years. However, an OFP can be extended by the court upon application by the Petitioner if the Petitioner shows that 1) the perpetrator has violated a prior or existing OFP, 2) the Petitioner is reasonably in fear of physical harm, 3) the Respondent has engaged in acts of stalking within the meaning of Minnesota statute or 4) the Respondent is incarcerated and about to be released or has recently been released from incarceration. Conversely, the Respondent may seek to modify or vacate an OFP, but only if it has been in effect for five years and the Respondent has not violated it in that time. The court may only grant the Respondent’s request if the Respondent proves by preponderance of the evidence that there has been a material change in circumstances and that the reasons upon which the court relied in granting or extending the OFP no longer apply and are unlikely to occur.
Although it is important to have a process to quickly address domestic abuse, the consequences of an OFP are serious and this process can be misused. A violation of an OFP is a separate crime and the Respondent can be kicked out of their house and have custody and parenting time rights severely restricted. In a divorce or custody case, the court must consider the OFP in determining custody and parenting time. In addition, the Respondent is prohibited from possessing firearms while the OFP is in effect and will not be able to work in certain professions or employment positions. This is why it is crucial for a Respondent to seek legal advice immediately if they are served with an Ex Parte OFP or order for hearing.
Whether you are seeking an Order for Protection or defending against one, it is important to discuss your case with an attorney who has experience with Order for Protection proceedings. To discuss your questions with an attorney experienced with Order for Protection proceeding, contact Tentinger