Show Topic
This show aired on August 27, 2017. It was hosted by David Enevoldsen, a partner at Family Law Guys. The show was about protective orders and discussed orders of protection, their nature as being tied to close personal relationships, the nature of injunctions against harassment, the nature of injunctions against workplace harassment, where you can go to get a protective order, that there are no filing fees for protective orders, how to serve protective orders, the implications of the Brady law and how firearm ownership can be impacted by a protective order, what happens in a hearing challenging a protective order, and the need to take appropriate steps to protect yourself even if you have a protective order.
Headlines
Headlines on this show looked at the ruling from the Indian Supreme Court regarding triple talaq and the finding that it’s unconstitutional and was therefore banned in India, the claims of harassment of and by Howrah Ishrat Jahan (one of the Petitioners in the triple talaq case in India) and her counsel, the outrage by Meghan Trainor of her image in association with an Australian anti-gay marriage ad as she is in favor of gay marriage rights, and the new policy by Chechnya’s president, Ramzan Kadyrov, to impose forced reconciliations of people that have been divorced so as to prevent children of divorced couples from becoming terrorists.
Did You Know
This show’s Did You Know looked at covenant marriages. This included a look at the use of covenant marriages in Arizona and their history in the United States. It looked at the fact that covenant marriage require some sort of fault before a judge can enter a divorce decree, which is not generally required for a divorce in Arizona. It also looked at the fact that Arizona is one of only three states that allow covenant marriages. It also talked about what’s involved in entering a covenant marriage.
Transcript
Announcer: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems in the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more or schedule an appointment with David or another one in the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.
Announcer: The discussions and information provided in Family Law Report are intended to be general in nature and are not directed for any individual circumstances. No attorney client relationship is being formed through this program. If you need legal advice, your particular circumstances can vary from what is presented here and you should seek the advice of an attorney licensed to practice in your state.
Welcome to the Family Law Report, the show that explores issues related to marriage, divorce, and children, hosted by David Enevoldsen, a practicing family law attorney in Arizona. Now, here’s your host.
David Enevoldsen: Hello everybody and welcome to Family Law Report. I’m your host, David Enevoldsen, here with you every Sunday at noon on independent talk, 1100 KFNX. Here on Family Law Report, we talk about all the current topics of family law, and that can range from what’s happening in the political arena to just the basics like how to work through the nuts and bolts of a divorce. I’m a practicing attorney and of course I work in the area of family law. When I say family law, I mean anything related to marriage, divorce, fights over custody of children, prenuptial agreements, child support issues, grandparents’ rights, all of that sort of thing. I’m a partner at a law firm here in Arizona called Family Law Guys and we focus principally on helping divorcing parents avoid getting screwed out of time with their children. We have offices here in the Phoenix area and if you want to reach out to us you certainly can.
I want to underscore that if you have a family court issue, there are so many traps that can show up in those types of cases and it can be a very dangerous place. Seen situations where people have completely lost access to their children. I’ve seen situations where people have been charged criminally related to their children. I’ve seen situations where people walked out with massive alimony payments in monthly amounts. I’ve seen situations where people have been slapped with tens of thousands of dollars in judgements for back support for either spousal maintenance, child support. I’ve seen huge judgements for equalization payments, have seen huge judgements for attorney’s fees. I’ve even on several occasions seen people dragged physically out of a courtroom in handcuffs.
So whatever your situation is, if it’s, if you’ve got something going on in the family law arena, I strongly encourage you to at a minimum, sit down and speak with an attorney, just to find out your basic legal rights and obligations and just to get a sense of what’s going on so you don’t go in and make some tragic error. Of course, it’s always ideal to have an attorney through that whole thing. But some people can’t afford that. But even if you’re in a situation where you can’t completely afford it, at least see if you can just pay for an hour of time to sit down and talk with a family law attorney just so you know what’s going on and you have a good sense of what to do when you walk into a courtroom.
Of course you can contact us. And again, my law firm is Family Law Guys and we don’t practice outside of the state of Arizona, but if you want to call us and schedule an appointment to talk about your family law case, you can do so by calling 480-565-8680. Or you can check us out on our website at www.familylawguys.com.
On today’s show, we are going to do one of our nuts and bolts type shows. I’m going to talk a little bit about protective orders, and a lot of people like to call those restraining orders. Before we get into that, I’m going to hit our headlines. And then our did you know. Headlines is where we talk about things that are going on in the press that are related to family law.
First up, long awaited, this is something we talked about quite a bit in some of our earlier shows and that is we have a ruling in India on the issue of triple talaq. Now if you’ve heard past shows, I’ve brought this up on numerous different episodes related to the headlines. This was something that was popping up. And let me tell you about the background of what triple talaq is. It is basically this Muslim concept. It’s a little bit ancient now and the idea was that a man has the ability to divorce his wife by simply saying the word talaq three times. Now talaq is the, as I understand it, the Arabic word for divorce. So you’re essentially saying to your wife, divorce, divorce, divorce, and then as soon as you do that, the divorce would be automatic. You just, you’re done. Now this is a practice that’s been banned in a number of countries with strong Muslim presences. And in India it was still being allowed.
There’s a lot of controversy surrounding the practice because it was very often leaving women destitute, just out on the street. Sometimes it would have implications in terms of property rights. Sometimes it would have implications in terms of children. It would very often happen very hastily, like the guy would just get very upset and say, I’m angry, I’m divorcing you, talaq talaq talaq, and then you’re just done.
There were also ancillary problems with the whole thing. There was one episode we did previously where we talked about halala services, which was in essence once this whole process had gone through, the talaq process, if a woman then wanted to remarry the man, for whatever reason, she had to go through this process of halala, which meant that she had to marry someone else, consummate the marriage, and then get divorced from the second person before she could go back to our original husband. The problem with that was that it started spinning, a whole bunch of people that were kind of taking opportunity of the whole thing, and they would create so called Halala services where they would essentially hang out a shingle, approach these women who were in these vulnerable places because they’d just been divorced by triple talaq, and they desperately wanted their husbands back or they wanted to line themselves up in a situation where they would be able to get back their husbands. Sometimes the husbands would back up and say, Oh, I’m not mad anymore. I’m sorry. I want to hook back up. But they couldn’t because of this whole thing.
And so what some people were doing was they would hang out their shingle, say, “Hey, if you’ve just been divorced by triple talaq, pay me some money,” and that could, in some of the articles I was reading, was going up to a couple thousand dollars. That person would then marry you, take you into a room in the back of their building, consummate the marriage, and then come back out and divorce you. And so that created a whole nother problem that was ancillary to this whole talaq thing.
Well, all of this was hitting the press, it was huge controversy in India and ended up working its way up to the Supreme Court in India, which, we’ve been waiting for a little while on the results of that whole thing. And we finally have it.
So the whole case started with five different petitioners and it was, I guess a consolidation of these five different cases. And the court issued a ruling this week indicating that they are indeed banning this practice. They said it was a constitutional violation because it denies the guarantee of equality. It was saying that they were essentially treating men and women differently. Now, as I understand it, there was also an embedded debate within this whole thing related specifically to whether or not there were religious protections around the practice, because of course this is spawning out of the Muslim faith. And so there was a big debate about that. Now in the opinion the justices had said that triple Talaq is “not essential to the Muslim faith” and thus failed a key legal test and they also said “what is banned in the Koran be good in Sharia law and what is banned in theology cannot be good in law.” So they also looked at the idea that Muslim faith promotes reconciliation and equality in general and they didn’t feel that the practice of triple Talaq was in line with these ideas.
So I’ve been waiting for this one for a while. I was very interested and this is what I suspected that the Indian Supreme Court was going to do. But now triple Talaq is indeed banned as a practice in India, and I don’t think there’s very many more countries that actually still recognize this, but there you go.
Now, second headline is actually kind of a spinoff of this story and it ties directly in, and remember I said a minute ago that there were five different petitioners in the case that went up to the Supreme Court related to the whole triple Talaq issue. And one of those was a woman named [inaudible 00:09:45], and if I’m mispronouncing that, I apologize to anyone that recognizes how to correctly pronounce it, but she got divorced about three years ago by this practice of triple Talaq. Well, now, according to her lawyer, since this decision came out, she’s been receiving all sorts of threatening phone calls, teasing, torments, threats, people saying that she’s at fault in essence for ending this practice of triple Talaq, the instant divorce thing.
The lawyer’s claiming that the police are just ignoring her. She’s going to them saying she’s in danger and people are just continuing to harass the heck out of her. And the police are just kind of blowing her off, presumably as a further, as a continuation of this anger about her role in the end of the triple Talaq process. She said, “people are taunting me, saying I’m a gundy aroot,” which, as I understand it means bad woman, “that I had curbed the triple Talaq system, they’re even provoking my child against me saying, look at what your mother is doing. Going to newspapers, TV stations, police, court, they’re not saying I’m fighting for my rights.”
So apparently also, there’s a claim from her lawyer that there’ve been a number of social media threats directed at the lawyer as well. So [inaudible 00:11:00] and her lawyer having unsuccessfully sought help from the police have now turned their attention to the chief minister and it’s my understanding that the chief minister in India is, it’s something like the head of, I think they have something entitled the governor, and this is different. I don’t fully understand the political structure there, but my understanding is it’s something akin to a governor in the US, where the chief minister heads up each of the states in India. So they’ve approached the chief minister in their state and they’re asking for help on this whole thing and that’s where this hit the press most recently. So we shall see what happens there. And this whole story, it was quite interesting to me.
Next up, there’s a story from Megan Trainor. Now, this is a continuation of the whole issue related to the gay marriage debate, which has been going on all over the place. Well, Australia right now has been hosting what I understand is an informal vote related to whether or not they should be legalizing gay marriage, because in Australia right now it is not currently legal.
Megan Trainor is a singer, a pop singer. Last year she created a song entitled No, and so there’s this anti gay marriage ad that was promoted in Australia in which there was an image of her and on there was text that said, my vote is no, you need to let it go. In sync with this song. Well, apparently Megan Trainor found out about this ad and got super angry because she’s an advocate for homosexual rights and so they had been using it without her consent. Couple quotes from her that she put out on social media, one, “I support marriage equality. Someone in Australia is illegally using my picture for a campaign against marriage equality. So wrong. Not okay. I’ve said it before, everyone should be able to love who they want. I support equality, period.”
Alright, we’re gonna take a quick break. I’m attorney David Enevoldsen, with Family Law Guys, when we return, we’re going to be talking about our did you know, going to do one more headline, then we will talk about protective orders. You are tuned into Family Law Report on Independent Talk, 1100 KFNX>
David Enevoldsen: Welcome back to Family Law Report. I’m your host, David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on independent talk, 1100 KFNX. You want to reach out to schedule an appointment with myself or another attorney at my firm, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in and ask any questions or share thoughts, you can do so by calling 602-277-KFNX.
And today we’re gonna be talking about protective orders. Now, before we get to that, I want to hit one more headline because I thought this was also quite interesting and there’s just been so much going on in the family law universe, and then I want to do our did you know.
Last headline. It was something that just popped up, and this is related to Chechnya, which is in the news again. Now, a lot of the headlines that we’ve been looking at in the past several weeks or months have been circling around this increasingly heated debate over homosexuality, and that’s been everything from whether or not people should be allowed to protest on homosexual levels, to whether or not we should allow homosexual marriage, to whether or not it should be criminalized. Well, there’s just been stuff going all around. Well, the last article we had about Chechnya was related to the homosexuality there.
Now, Chechnya has a very negative look at homosexuality. This is kind of an aside. It’s not really relevant to this headline. But they had a situation where they were being accused of rounding up homosexuals and torturing them, sometimes killing them. Now Chechnya’s President Ramzan Kadyrov, denied those allegations and he said that it was impossible because there are no gay people in Chechnya, which seems strange, but regardless, that’s not the article. This is just background of Chechnya.
Right now, Chechnya is in the press because it’s got this new policy regarding remarriage. President Kadyrov has indicated that he believes that children of divorced parents are more likely to become Islamist terrorists. Because of that, he kicked off this program called this family reconciliation program and in it the government goes and talks to divorced couples, people that have been divorced and have children, and it pressures them to get back together for the sake of their children. So far, apparently this whole thing launched in June, and since then, 948 couples have gotten back together following some of these talks. And in many of the situations that these were places where some of the partners had remarried and were hooked up with someone else and in some of the situations there are people that had been divorced for up to like seven plus years. But the state comes in and says, all right, you need to get remarried again for the sake of your children.
There’ve also been these regular reports on TV about all of these couples and what’s been happening since they’ve been reunited. Apparently it’s been sort of uncomfortable. Of course the state is putting a positive spin on it. Kadyrov, the president, has been quoted as saying “If they could live together and have three, four, or five children, why divorce after that?” He also said that when you look at children of divorced parents, “From 100 such families, five or six are normal.” So he’s taken this position that if we don’t have people get back together after they’ve been divorced and they’re in whatever situations there are, it’s gonna basically destroy all of the children and they’re going to grow up and become ISIS terrorists.
And so he’s forcing everyone back together and there’s been a number of complaints from some of these people who are just saying, I have to do this because there’s no other choice, but they just really don’t want to. So this is quite an interesting story in a very, very different environment from what we see in the US, not only on the gay marriage front, but just on the way we look at marriage.
Now, this article, part of the reason that I like it is it ties into our did you know. And today for the did you know, what I wanted to talk about was covenant marriages. And that’s something I think we’ve mentioned at least in passing on some past shows. But I just wanted to explain what that is in a little more depth.
So covenant marriage is essentially a way to impose fault back into your marriage in the midst of this no fault divorce system. Now in the US, we’ve basically shifted this trend towards no fault divorce. And the essential idea is it used to be that in order to get a divorce, we had this idea that the marriage was the sanctimonious thing that you wouldn’t violate unless there was some serious reason to do that. And in other words, you would have to show fault. And legally you couldn’t even get the divorce unless there was fault there. And fault would be something like there’s adultery going on, somebody’s committed a felony and they’re locked up, somebody is abusing drugs or alcohol or something of that nature, there’s domestic violence going on, child abuse, one of the spouses has just picked up an abandoned the family, something like that. So it used to be that in order to get the divorce, you would have to establish fault like that, that there was something crazy going on before you go do that.
Well, in the US, we’ve been shifting towards a no fault system, meaning that you don’t have to go in and show any of these things in order to get there. You simply say, I don’t want to be married anymore, so I’m outta here. I don’t like this person. Like you didn’t have to show anything beyond just that you didn’t want to be married. In Arizona, different states call this different things, in Arizona we have the default grounds that where we say the marriage is irretrievably broken, which is the same basic concept as I just don’t want to be married anymore and this isn’t working and I can’t stay in this situation.
Covenant marriage is something that Arizona does and there are only actually three states in the United States that even do this, and Arizona is one of them. The idea is you’re contractually reimposing fault back into the marriage so that once you have this covenant marriage, you can’t just say, I don’t feel like being married anymore. I want to get divorced. You now have to show that there’s one of these fault bases. As I said, there’s three states in the US that do this. Louisiana was the first one to enact legislation that would allow covenant marriages. That was back in 1997, Arkansas followed suit same year, 1997. They also enacted legislation. And then Arizona, we followed right after that in 1998. So we’ve had this on the books since 1998. You can still do it.
To get the covenant marriage, you have to go through a couple of little extra steps. You have to first, you have to go through some sort of premarital counseling, and the counseling can be from either of a marriage counselor or someone from your clergy, your church. So once you do that, you go in and you talk to them about what’s going to be happening with the marriage. Both parties sit there and do that. They have to go to whoever did the counseling, whether this was a marriage counselor, a clergy member or whatever. They have to write up a sworn statement, that goes in with the application for the marriage license. So that’s step number one.
Simultaneously, when you’re applying for the marriage license, both parties have to show that they want to get into the covenant marriage, and so they sign up this little extra declaration saying, this is what I want as part of the marriage license. Now once you’ve done all this, you get the covenant marriage, and it’ll say that on your marriage certificate that you have the covenant marriage. Additionally, if you have a marriage already that you’re in and you’re not in a covenant marriage, but you want to be in a covenant marriage, you can convert it. So the process is very similar. You put in these declarations and then you can take your existing marriage into, turn it into a covenant marriage.
Now backing up a step. Once you’ve got the covenant marriage, in order to get divorced, you can’t just say, we don’t get along anymore, I don’t like this. You have to go back and show fault. So in that, the list in Arizona includes things like adultery, one of the spouses has been sentenced to prison or death, one of them has abandoned the family for at least a year, there’s physical or sexual abuse, spouses have been living separate and apart for at least two years, spouse has got a legal separation, had been living apart for at least one year, there’s a drug or alcohol abuse problem. The one exception of this whole thing is if both spouses are just in agreement that they want to divorce, but if one of them is coming in saying, I want the divorce, and the other one is saying, I don’t want the divorce. You have to go in and show one of these fault bases.
So it’s kind of a reaction, a more conservative position I guess from imposition of the no fault system where we can just say, I just want to get divorced. And the whole idea here was we want to preserve marriages. We don’t want people just saying, oh, I want to throw this away because I’m not super happy right now. We want people to work on it, but it’s not required. You can only do this by option, like this is something you have to choose and consciously step into when you’re doing it.
I can tell you that from my personal experience, they’re pretty rare. I’ve worked on a very, very small number of these cases. Most of the divorces we work on are just kind of standard ones and very often this is one of the first questions we ask too when we’re doing intake on new cases for divorce is “Hey, do you have a covenant marriage?” And most of the time people look at you like you’re crazy and say, “I don’t know what that is.” And so my normal spiel is if you don’t know what it is, you probably don’t have it, because it’s so involved in just get into it that you would probably know what it is.
So once you’re going through the divorce process, just as one more aside, the process is pretty much the same thing. The only real substantive difference is that you have to show one of those grounds that we were talking about. Instead of just saying the marriage is irretrievably broken, you have to go in and show that one of those things was there, so there you go. That’s our did you know for today. Again, it’s something unusual about Arizona. We’re one of only three states that does it. It’s this shift backwards to kind of preserve marriages and to make them a little bit more valuable, and if it’s something you want to do to kind of protect your marriage, then it’s something you should consider, but just be aware that when you get to the point of actually divorcing someone, it’s going to add a little complication.
And I have seen, in the few instances where I’ve actually worked on some of these covenant marriage divorces, it has added some complication. Not necessarily in terms of the legal procedure, but in terms of people getting to the point of the divorce. And that’s the intent. It’s, we’re trying to make it such that people aren’t just throwing away a marriage on a whim. We’re making them step back and figure it out. All right, we’re going to take one more quick break. I’m attorney David Enevoldsen with Family Law. Guys. When we return, we’re going to be talking about protective orders or restraining orders. You want to call in and ask any questions you can do so by calling 602-277-KFNX. You are tuned into family law report on independent talk, 1100 KFNX.
Speaker 7: Family Law Report is hosted by Family Law Guys, and Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more or schedule an appointment with David or another one in the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.
David Enevoldsen: Welcome back to Family Law Report. I’m your host, David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on independent talk, 1100 KFNX. If you want to reach out to schedule an appointment with myself or another attorney at my firm, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in and ask any questions or share thoughts, particularly as they relate to whatever we’re talking about, you can do so by calling 602-277-KFNX.
And today we are going to be talking about protective orders, also very often referred to as restraining orders. Now these are, let me start with just a basic definitional thing here. Now, a protective order is essentially just an order that says one person is not allowed to contact or be around another person, say stay away and don’t otherwise commit any illegal acts, things that would be like harassing or, any sort of physical violence, abuse, anything like that. Informally, we call them restraining orders. That’s sort of the nomenclature that a lot of people know them by. And I think in a lot of states, we call them that formally. Arizona, typically we’ll call them protective orders.
There are three major flavors of protective orders and one of them is the most relevant to family law. And it’s relevant because in family law and divorces and situations with custody, we deal with situations all the time where somebody is either harassing somebody or is being physically abusive or violent or something of that nature. Imagine for just a second, I know this may be a little stretch, but imagine a situation where you’ve got a relationship and there’s a breakup and one of the two people in the breakup can’t let go of that idea and they’re just showing up nonstop and they’re harassing someone and they’re getting violent and they’re threatening or actually acting on violent tendencies. This is the sort of situation where you want an order of protection or a protective order of some sort.
Orders of protection are the most common ones in this universe. The whole idea is we’re trying to keep people safe. It’s a safety order. It’s an order to prevent somebody from getting into a situation where you’re going to create violence or creates somebody that’s absolutely miserable or have children that are injured, something like that.
First off, let’s talk about orders of protection. One of the distinct, one of the hallmarks about an order of protection is that it’s related specifically to somebody that you have a close personal relationship with and it’s preventing that person from contacting the other person or from committing domestic violence. Now when we say, when you have a close relationship with this other person, usually we’re talking about something like husband and wife or former husband, wife, children and parents, grandparent relationships, you have a child in common with the other person, but you aren’t married. Sometimes it’s people that have been living in the same household. Sometimes it’s somebody’s pregnant by the other person, specifically if there is a romantic or other kind of sexual relationship between the parties. This is one of the two prongs you have to show, in order to get the order of protection, you have to be able to establish at least that there is this relationship of some sort, that you have this close type of thing going on.
Now, second piece of this is you also have to show that the defendant, the defendant as the person you’re trying to get the order of protection against, you have to be able to show that they either have committed or are likely to commit domestic violence on you in the future or on your children. Now, interestingly, the way that the Arizona statutes read, the definition of domestic violence is actually quite broad. It encompasses some things that you would assume that it encompasses. For example, if you’re talking about physical violence, that’s like if you’re coming over and just beating the heck out of someone, that’s obviously domestic violence. other things that it could include are restraining someone or locking someone up, also seems kind of obvious, but a little bit less. so Like for example, if I locked you in your room, you have imprisoned someone, that can be defined as domestic violence. If you are simply displaying a deadly weapon, you brandish a knife or a gun, something like that. That could be interpreted as domestic violence. One of the interesting things I find about it is that it can also include disorderly conduct and the way that we define disorderly conduct is extremely broad. So if you’re just at home screaming at the other person or yelling, that could be construed as domestic violence, technically.
I will tell you from my personal experience in the courtroom, it’s actually kind of a little bit difficult to show domestic violence. It at least it’s more difficult than it is to show certain other things like for example, it’s much easier in my experience to show that somebody is on drugs than it is that they’re a domestic violence offender. And part of that is just because of the nature of what’s being claimed. One person is going to not perceive whatever they’re doing as domestic violence, so they’re going to come in and deny that there was domestic violence going on and then meanwhile the other person is going to be saying this is happening, and so as an evidentiary matter, it’s very, very difficult to prove unless you’ve got like photographs of bruises or something. Most of the time it’s tough to show in a courtroom. This is my experience talking. As opposed to like drugs where you can simply order a drug test and it’s either positive or it’s negative and if it’s positive, you’re just sunk, from the perspective of the person that had the positive drug test.
Now with domestic violence, you walk into a courtroom and you say, this person has been screaming at me and beating me, or whatever it is that’s been going on. The other person’s gonna say, no, I didn’t. I don’t know what you’re talking about. And what’s the court supposed to do because there are people that I’m, that convinced will legitimately come in and claimed domestic violence when I don’t think there is any domestic violence, or where they’re contributing to it, or are creating the same kind of situation or they’re the ones prompting in the first place. Anyway, without going too far off on the domestic violence road here, that’s what an order of protection is, so you essentially have to have, there’s a close relationship and there’s some sort of threat of domestic violence going on.
There’s another type of protective order. I’ll talk a little bit, slightly less relevant to the family law universe, but it is within the definition of protective orders and that’s called an injunction against harassment. Now they’re similar except that they’re focusing on more than a single act of harassment. It’s looking specifically at issues related to harassment and here you don’t have that situation where you’re closely tied to this other person by way of having a kid with them or being married to them or something like that. You’re just looking at, has there been a series of acts of harassment? Now it has to be an actual series. It can’t just be one. We’re expressly looking for multiple things going on.
Another interesting distinction between the order of protection and the injunction against harassment is that with an order of protection, you can actually restrict someone from going back to their home. Because we’re dealing with situations where people are often living together in the order of protection situation because you have to have these close relationship. In this situation with the order of protection, you can say this one person gets exclusive use of the house. Like you can’t even go back there now, you’ve got to figure out somewhere else to go. You can’t do that with the injunction against harassment. There’s also a slight difference in the way you serve these. And I’ll talk about that in just one second.
One other flavor of protective orders that I just want to touch on. I’m not going to talk about it a whole lot because this is getting pretty far from family law, but it is again within the umbrella of protective orders. So I think I need to at least mentioned it and that is an injunction against workplace harassment.
And here again, it’s kind of similar in that here we’re trying to restrict somebody from showing up at a certain place or engage in harassing behaviors. Specifically looking at the workplace though, of course, because it’s workplace harassment. And one of the interesting quirks about this one, is that it doesn’t have to be one party that’s being harassed. It’s sort of focusing on a whole company. So an employer can go in the place of a person or persons in the company that are being harassed. So let’s say you’re working for a company and your boss can run down to the court, get the injunction against workplace harassment on your behalf, and that can protect everybody at the company in essence. And so that one also is a little different in that it only requires a single act. It doesn’t have to, you don’t have to have this series of acts or threats of act, but they’re related to acts or threats of physical harm or damage. So again, I just want to touch on those just so that you know, they’re within the umbrella of protective orders, but generally speaking, this isn’t what we deal with in the family court universe. At least that’s not what I’ve historically dealt with a lot.
So we’ve got those three flavors. We’ve got the order protection, injunction against harassment, and the injunction against workplace harassment. Order of protection is the most relevant with respect to the family court. If you want to get one of these, let’s say you’re in one of these situations and you’re saying, oh my gosh, this person is scaring the heck out of me. I think they’re going to do something dangerous. I need to go get a protective order. They’re fairly simple and straightforward to get. Now you can go to any Arizona state level court and that means you can go to a city court, like any municipal court, you can go to a justice court, or you can go to a superior court, basically just walk in and you say you want an order of protection.
They will typically have little protective orders station and you go in and they have a terminal and it has a series of questions that it will run you through and you answer the questions. Things like, you know, what’s the name of the other person? What’s their birthday? Why are you asking for this thing in the first place? And you have to create a basis for this need for protection. And you assert those allegations in there and typically then you will get rolled over to a judge or commissioner who’s going to take a look at it, might ask you some questions and then they will issue the thing. Once you’ve got it, then it has to be served on the other party.
Now, one interesting note is that while you, as I indicated you can get these in any state level court. If you have a family court case going on that’s separate from this, because this is not your family court case, this is an ancillary case. If you have a separate family court case going on, like say you’ve got a divorce going, then I would suggest that you start with the superior court because if there’s a protective order in place, it will ultimately have to be transferred to the Superior Court. So by not starting there, you’re actually just creating a lot of delay.
One interesting point about protective orders, at least with the orders of protection is there are no filing fees there, so you can just go get them. And you don’t have to pay to get them because here again, we’re concerned about safety and we don’t want to have filing fees determine whether or not someone is safe.
So, service. That’s the next thing you have to do. Our constitution has this funny requirement that if some case is going on, they have to know about it. They have to have this concept of due process, and so when you get the protective order, you have to serve it on the other party. They have to be on notice that before they’re going to be charged criminally for violating a protective order, they know that it’s going on. So you have to serve it on them, and it has to be actually personally served, has to be a process server, a law enforcement officer or something like that that hands it to them.
Now here again with the orders of protection, there isn’t generally a fee. You can go to law enforcement and they hand it to this person. They will hunt them down and try to serve it to them. If you happen to run into them and you have a certified copy of it with you, they can serve it at that point.
Interestingly, this is one of the distinctions with the injunction against harassment. You can’t do it for free there. You have to pay for process server at that point, but key thing about service is that it is not valid. The order of protection is not valid. It doesn’t come into effect until it has been served on the defendant, so I’ve had quite a few instances where somebody goes and gets the order protection and thinks that they’re covered, but they haven’t taken that extra step of actually serving it on somebody.
So we’re going to take a quick break real quick. I am attorney David Enevoldse with Family Law Guys and when we return we’re going to be talking more about the protective orders. If you want to call in and ask any questions, you can do so by calling 602-277-KFNX. You are tuned into family law report on independent talk, 110 KFNX.
Speaker 7: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems in the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more or schedule an appointment with David or another one in the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.
David Enevoldsen: Welcome back to Family Law Report. I’m your host, David Enevoldse, an attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on independent talk, 1100 KFNX. If you want to reach out to schedule an appointment with myself or another attorney at my firm, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in and ask any questions or share thoughts, you can do so by calling 602-277-KFNX.
And today we’ve been talking about protective orders. Now, right before the break I had mentioned that, I kinda went through the basics of here’s what the different types of protective orders are. I mentioned that in order to get one you go down to basically just any Arizona court. If you’ve got an existing family court case, you should do so at the superior court because that’s where all of those take place. And then after that you have to serve them and the protective order is not going to be valid, and I’ve had, as I said before, I’ve had a number of incidents where people got one, went to the trouble of going down to the court and found it, and then never served it. And thought that it was in effect and suddenly realized later that because they didn’t serve it, it never came into effect.
Now importantly, understand that once you get the protective order and you have served it on the other party, it lasts for a year. It is a year long in duration, and at the end of that year it just expires. So if you need it further after that time, you need to go back to the court and take some action again.
One other interesting quirk about protective orders is that there is an additional option within them to prohibit someone from having possession of any sort of firearms. Because here again, our major concern with protective orders is safety. We want to make sure that, that we’ve heard, if you’ve listened to the show before, we’ve had a number of things in the headlines where we’ve talked about how violent people will get and we’ve got situations where, custody exchange and somebody says, I’m going to get divorced, and suddenly you have somebody that seems just this mild mannered, normal person that completely flips out and will go on either shooting the other person and killing them, I’ve seen situations, we’ve talked about situations where lawyers get shot. We’ve talked about situations where there’s murder-suicides. We’ve seen situations where somebody kills the other party, then kills the children, then kills themselves.
So there are some potentially very, very scary situations out there in the family law universe, and when you’re dealing with things like divorces and affairs and fights over children, the degree of animosity and the degree of feelings of hopelessness and despair and stuff can rise rapidly to the level of violence. And so when we’re looking at protective orders, we’re specifically concerned about these issues. And so if the court takes the extra step of saying, look, this person, there’s some sort of indication here that this person is dangerous with firearms, then the court has the ability in these proceedings to say, you cannot have them in your possession.
Now the reason this can be potentially concerning, because a lot of people just have guns, and Arizona allows you to have them, and that in a vacuum can be concerning. But for some people this is super concerning because they use a firearm for work. Think about, for example, police officers, they need to have a firearm, generally speaking. There’s some security guards that have that, sometimes there’s people in the military that need that. So if you’ve got this order floating around that says you’re a potential danger, so you’re not allowed to have a firearm for the next year in your possession. You think about very carefully how you’re gonna deal with this, and this is one of those times when you might want to talk to an attorney because it has some serious potential implications about what’s going on and it has implications on the other party as well. So if you’re coming in and you are using this in a negative way, as just sort of a weapon. Think about what you’re doing here because it’s not necessarily fair to go and impose that on someone.
Now, once you have the protective order in place, so you get the protective order you served it on the other party, the next big thing that can happen is the other person can say, wait, wait, wait, hold up a second. I’m not a danger to anybody. Why am I? Why do I have this order in place? Why am I suddenly prohibited from holding a weapon, if that’s the case in this particularly protective order. And they can come back and challenge it. So the first part of that all happens without the other person present. Now, if they want to say, this is all crazy, I don’t agree with this, they can come in and challenge it and the court has to hold a hearing at that time.
Come in, have a hearing. I’m going to tell you just briefly how that works. First you walk in. Both parties are going to show up in front of the judge or commissioner. The person that’s asking for the protective order has the burden of going first. They typically have to say, hey, look, here’s what’s going on. Here’s why I need this protective order. Please support it. And so then, shifts over to the other person to say, no, no, no, that’s not true, or this is wrong, or it shouldn’t be held in place. And here’s why. And then typically the court will, occasionally they’ll take it under advisement, meaning they’ll think about everything that’s presented and give you a ruling later. Most of the time in my experience, they will give you a ruling right there, depending on the judge and depending on how complex the issues are presented to them and they will, at that point say, all right, this should be held up or not. If it’s held up, it’s just affirmed. Otherwise the whole thing gets quashed and it’s just wiped out and you don’t have to deal with that anymore.
The hearings themselves are generally pretty informal. There’s a lot of stuff that you don’t have to worry about that you might have to worry about in some other cases. For example, this is often a confusing one. If you’re presenting evidence related to these hearings, you can bring in hearsay, you can talk about what other people are saying. You can have statements from other people. It’s, as a practical matter, you want to bring in as close to the original witnesses as possible, because you want the court, the judge, to have the ability to cross examine this person and ask them more questions about what’s going on, if there’s something that is hearsay. But it’s something you can do, so keep that in mind as you’re going through these proceedings that they’re a little bit less formal. A lot of times it’s not even somebody sitting on a stand and getting cross examined or doing their direct examination. It’s just you saying, hey, here’s what’s going on. I’ve even seen situations, even when there’s attorneys in the mix, they will very often have situations where you’re just kind of saying, hey judge, here’s what’s going on, and you’re just sitting there and speaking by what the attorneys call [inaudible 00:52:44], where the attorney’s just kind of speaking on behalf of the client saying, here’s what’s happening.
Now. One thing that I would really like to stress about this whole thing is that when you have this protective order in place, it is a piece of paper. And I think that people have this impression that getting the protective order, having a restraining order, an order of protection, injunction against harassment, whatever thing you’re going to call it. I think people have this impression that once you get that, you’re in a more safe position than you were before. Now, keep in mind that the thing we are talking about here is safety, and if somebody is of a mind that they are willing to come out and physically harm you, if they’re going to do something where they’re going to shoot or attack you or try to beat you up, they’re already of a mindset that they’re not following the law. And the law already says, in a vacuum, you can’t go shoot someone or hurt someone or beat the heck out of them.
So keep in mind that this piece of paper, even though it says you have protection, this person isn’t allowed to come around you or beat you up or do any of this stuff. You should still go out and make sure that you’ve thought, very consciously, thought, very expressly and discussed with everyone in your household what kinds of safety mechanisms you have in place, and think carefully about do you have things that you can do? If somebody kicks in the door, what are you going to do? Is there an exit strategy? Do you have security measures in place? Do you have a door lock? Is everybody in the habit of locking the door? Somebody does break in the door, have you trained your children to call 911, if you have somebody that’s axing in your door and saying that they’re gonna kill you are flipping out.
Think very carefully about all these steps because at the end of the day you can go get these protective orders, but they don’t mean anything because if somebody is truly breaking down your door and is in this crazed, irate rage because of some affair or because they’re upset about the divorce or whatever, you holding up the piece of paper that says, wait, the judge said you’re not allowed to be here, isn’t going to do a whole lot. They’re still going to keep coming at you, so think very carefully to make sure everyone in your family has thought very carefully, and you’ve talked about what are you going to do in safety situations.
All right, that is our show on protective orders, orders of protection, injunction against harassment. How do you get them, how are they processed, and make sure that even if you get one, it’s ultimately just a piece of paper or you need to be very careful.
It’s about all the time we have for today’s show. You have been listening to Family Law Report. I’m your host David Enevoldse, an attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon and we have been talking about protective orders. I hope you join us again next week on Sunday noon for more of the latest on family law here on independent talk 1100 KFNX, and please remember that it is super important if you’ve got a family court case going on to go talk to an attorney, even if you just talk to him for an hour or so to figure out what’s going on. Check us out on www.familylawguys.com and thank you all for listening and have a great week.
Announcer: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems in the divorce system to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more or schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.