Domestic Violence & Orders of Protection
In many domestic violence cases, either the victim or the defendant obtains an order of protection or an injunction against harassment that may seriously disrupt the life of the other party. In Arizona, orders of protection are relatively easy to obtain. No criminal defense (or other) attorney is needed. Instead, a person merely applies in person at a local court and, usually, within an hour or two, has a court order that can do serious damage, even though the person who is named in the order does not attend the initial hearing. Further, the standard for obtaining an order of protection is low. Either (a) a single past act of domestic violence or (b) the probability of a future act of domestic violence will suffice. On this basis alone, the court may exclude a person from his or her home or workplace, restrain him or her from any contact with the alleged victim, and strip a person of his or her right to possess a firearm. Retaining a top criminal defense attorney can be essential to challenging orders of protection and preventing them from seriously disrupting a person’s life and ability to earn a living.
Scope of Order of Protection
Orders of protection generally last one year and typically forbid a person from making any contact with the alleged victim, including any contact in person, by email or by telephone. Often the orders also prohibit third-party contact, and specify that alleged victim may not be contacted at the workplace or the home.
Orders of Protection and Custody Disputes
Orders of protection are often (and unfortunately) used as weapons in family law disputes, especially those involving custody of children. For anyone involved in a custody dispute, an unchallenged order of protection can significantly complicate existing custody or visitation orders. Moreover, under Arizona law, if a judge finds that a person has committed a serious act of domestic violence, even if there is no conviction, she may required to presume that such person should not have custody of their children. A.R.S. § 25-403.03(A). Thus, an order of protection, even when not paired with a criminal conviction (or even formal criminal charges) can affect a parent’s custody and visitation rights.
Orders of Protection and Firearms Rights and Employment Requirements
An order of protection can be especially burdensome for police officers, federal agents, and others who must carry a firearm to do their jobs, but who may also violate an order of protection by carrying their service weapon. Other people who must, or simply wish to, exercise their right to bear arms may also be burdened by an order of protection and would benefit from representation by reputable criminal defense counsel. Arizona domestic violence law specifically permits the court to prohibit a defendant from possessing or purchasing a firearm for the duration of an order of protection. A.R.S. § 13-3602(G)(4). Further, if a person challenges an order of protection, but loses, the court may enter an order that, under federal law, permanently precludes a person from possessing any firearm. 18 U.S.C. § 922(g)(8). Consequently, representation by a top criminal defense attorney is essential to any person who is concerned with retaining his or her right to possess a firearm.
Challenging an Order of Protection
Special care should be taken when challenging an order of protection, particularly in cases where, as mentioned above, a person is engaged in a custody dispute, faces criminal charges or has a professional duty to possess a firearm. A person may challenge an order of protection at any time, and the court must grant a hearing within 10 days. The person challenging the order is entitled to a full adversarial hearing and may be represented by counsel. Both parties may call witnesses – even the party who obtained the order of protection may be forced to testify and undergo cross-examination. But beware: An unsuccessful challenge to an order of protection may have several unintended and harmful consequences. First, testimony and judicial findings that uphold an order of protection can be used in other proceedings as evidence of domestic violence and parental fitness. Therefore, anyone facing a custody dispute or similar court proceedings must proceed cautiously. Second, as described above, the court, following a adversarial hearing, may enter a “Brady finding”, that will effectively strip a person of all firearm rights on penalty of federal criminal prosecution. No additional criminal charge (or conviction) is required. Thus, as astonishing as it sounds, a person can become a “prohibited possessor” in Arizona without ever being prosecuted for domestic violence. Third, the testimony and judicial findings may be admitted as evidence in a criminal DV prosecution. While this can be a disadvantage for a criminal defendant, on occasion, usually with the advice of a reputable criminal defense attorney, it can prove beneficial. Under Arizona’s Victim’s Bill of Rights, a victim in a criminal case may refuse an interview with defense counsel even if his or her testimony is essential to the preparation of a defense. Challenging an order of protection, under the right circumstances and with the appropriate measure of caution and preparation, may provide much-needed discovery that aides a defendant. But these decisions should only be made in consultation with a qualified, experienced and knowledgeable criminal defense attorney. For these reasons, a qualified criminal defense attorney should be consulted before mounting a challenge to any order of protection. The Law Office of Michael Harwin has successfully handled numerous order of protection issues and specializes in addressing orders of protection in the context of pending criminal charges, custody disputes and firearms-related employment requirements. Our law firm fields a team of top criminal defense lawyers and former prosecutors who promptly, effectively and comprehensively address the risks that orders of protection pose to our clients. If you have been served with an order of protection or face potential domestic violence-related legal proceedings, the Law Office of Michael Harwin would be happy to speak with you.