How to Get an Indiana Protection Order Dismissed
The entry of a protection order can have serious consequences for the person whose activity is restrained, not the least of which is the creation of a record of a judicial determination of threatening or violent behavior. Fighting an Indiana protection order can be a complex process. Understanding the requirements and steps involved—and working with an attorney who has experience in this area—are necessary steps to success.
Based on their considerable experience, the criminal defense lawyers at Keffer Hirschauer LLP have prepared this blog to provide an overview of the process, including what a protection order is, when it can be filed, and the steps involved in filing a motion to dismiss a protection order in Indiana.
Understanding the Indiana Protection Order
Under the Indiana Civil Protection Act, Indiana Code chapter 34-26-5, the purpose of an order of protection is to prevent harm by restraining or enjoining another person from contacting, harassing, or committing acts of violence against the protected person. An order of protection is a legal or court order designed to protect a person from physical, emotional, or psychological harm as a result of the conduct of another person. The protected person who files for the order is also called the petitioner, and the person against whom the order is filed is called the respondent.
An Indiana protection order can be issued by any court that has jurisdiction over the parties involved. Indiana law provides for protection orders in different types of situations. These might include:
- Domestic violence protection orders
- Civil protection orders
- No contact orders
As the name states, a domestic violence protection order is filed by a person who alleges that he or she has been a victim of domestic violence. The petitioner may be connected to the respondent as a spouse, former spouse, a person who is or was living with the respondent, or a person who has a child in common with the respondent. A domestic violence protection order can prohibit the respondent from contacting or harassing the protected person, and it can also require the respondent to vacate the home or provide alternative housing for the protected person.
A civil protection order does not necessarily involve domestic violence. Rather, it is issued in a civil proceeding to protect victims of stalking, harassment, or sexual offenses even if the victim is not related to, of the same household as, or even acquainted with the person alleged to be committing such offenses. A civil protection order can prohibit the respondent from contacting or harassing the protected person, and it can also require the respondent to stay away from the protected person’s home, school, or place of work.
Unlike the protection orders described above, a court may issue a no contact order only as part of a criminal case. A no contact order prohibits the criminal defendant from contacting the victim of the crime, which may involve allegations of domestic violence, harassment, or stalking, but the order is incident to the criminal proceedings.
When Can an Indiana Protection Order Be Filed?
An Indiana protection order can be filed at any time when the protected person believes that they are in danger of harm. In Indiana, the process for filing a protection order is relatively simple. The protected person must fill out a petition seeking an order of protection and file it with the court. The court will then review the petition and, if it meets the requirements for a protection order, the court will issue a temporary order.
The temporary order is in effect for up to 30 days, during which time the court will hold a hearing to determine whether a permanent protection order should be issued. If the court determines that a permanent protection order is necessary, it will issue an order that will remain in effect for a specific period of time, typically up to two years.
Requirements for the Entry of an Indiana Protection Order
To obtain an order of protection in Indiana, Indiana Code § 34-26-5-2 provides that the petitioner must demonstrate that they have been a victim of domestic or family violence, stalking, harassment, or sexual assault and that they are in immediate danger of further harm. The petitioner must provide supporting evidence, and the court will review the evidence and decide whether to issue the order of protection.
There are specific requirements that a petitioner must meet to obtain an order of protection. Indiana Code § 34-26-5-9 explains under what circumstances a court may enter an order of protection without first holding a hearing, with Indiana Code § 34-26-5-10 detailing the hearing process that must occur afterward.
While the court may issue a temporary order of protection without a hearing if the petitioner demonstrates that there is an immediate danger of harm, a final order of protection can only be issued after a hearing in which both parties have the opportunity to present evidence and testimony.
Potential Defenses to a Petition Requesting an Indiana Protection Order
If someone is facing a request for an order of protection in Indiana, there are several defenses they can assert to challenge the request. These include denying the allegations made by the petitioner, asserting that the petitioner does not meet the legal requirements for obtaining an order of protection, or arguing that the request for an order of protection is being used to gain an unfair advantage in another legal proceeding.
Just as the petitioner must present evidence to support the entry of an order of protection, a respondent who is defending against that request should present evidence refuting the grounds for such an order. For example, a respondent may present evidence that they did not commit the acts alleged by the petitioner or that the petitioner’s allegations are false or exaggerated. The respondent may also present evidence that the petitioner is not a victim of domestic or family violence, stalking, or sexual assault, as defined by Indiana law.
Similarly, a court may refuse to issue an order of protection if it finds that the request for an order of protection is being used to gain an unfair advantage in another legal proceeding. One example is when the request is being made primarily to obtain an unfair advantage in a child custody or visitation proceeding, or in a divorce proceeding.
The respondent may also assert a defense of self-defense. If the respondent used force against the petitioner in order to defend themselves from an attack, they may argue that their actions were justified and that they should not be subject to an order of protection.
Grounds for Dismissal of an Indiana Protection Order
If you have been served with a protection order in Indiana, an Indianapolis protection order attorney can help you determine what your options are and explain how to fight a protective order in Indiana. In some cases, one option is to file a motion to dismiss the protection order under Indiana Code § 34-26-5-12. The basis for requesting dismissal will depend on the particular facts in your case. Following are some possible grounds for dismissal of Indiana protective orders.
Failure to Follow the Process for Issuing an Order of Protection
As described above, the court must follow the statutory requirements for issuing an order of protection. The failure to satisfy those requirements, such as by missing a deadline or not giving required notice to a party, can sometimes be the basis for dismissing a protective order.
Failure to Demonstrate the Statutory Grounds for Issuing an Order of Protection
In some cases, a respondent may argue that the petitioner did not prove that the respondent committed an act of domestic or family violence, stalking, or a sex offense against the petitioner or a family or household member. Alternatively, the respondent may argue that the petitioner did not prove that the respondent poses a credible threat of committing such acts in the future. Success in establishing either of these may be grounds for dismissing an order of protection.
Failure to Demonstrate that Respondent Poses a Threat
Another ground for dismissal is that the respondent is not a threat to the petitioner or a family or household member. For example, the respondent may argue that the petitioner’s allegations are unfounded or that the situation has since been resolved such that the respondent no longer poses a threat.
Use of Fraud, Misrepresentation, or Other Improper Means to Obtain Protective Order
A respondent may be able to get an order of protection dismissed upon showing it was obtained by fraud, misrepresentation, or other improper means. For example, the respondent may argue that the petitioner fabricated evidence or made false statements to the court in order to obtain the order.
Agreed Dismissal of an Order of Protection
In some cases, the circumstances that led to the petitioner requesting an order of protection cease to exist. When that happens, the parties may agree that the Indiana protection order should be dismissed. However, they would need to file that agreement with the court and request dismissal. Only an obvious expiration date or another court order can cancel or negate an existing order of protection.
Steps Involved in Filing a Motion to Dismiss a Protection Order in Indiana
Once you have identified the grounds for dismissal, the next step is gathering evidence to support your motion. This may include obtaining witness statements, police reports, medical records, or other evidence that supports your claim. An experienced protection order defense attorney can help expedite this process.
After gathering the necessary evidence, you will need to file a motion to dismiss with the court. The motion should clearly state the grounds for dismissal and provide a detailed explanation of why the protection order should be dismissed.
Following the filing of your motion to dismiss, the court will likely set the motion for a hearing. You and your attorney will need to appear for the hearing to present your evidence to the court. However, the protected person will also have the opportunity to present their evidence and argue in support of denying your motion.
Where to Get Help Dismissing an Indiana Protection Order
The entry of an order of protection against you can wreak havoc on all areas of your life—where you may live, work and visit, with whom you may communicate, and even whether the order’s limitations impact your job, housing, professional license, or certain constitutional rights. You need a protective order attorney in Indianapolis who has deep experience with the relevant law and in litigating protection order cases.
At Keffer Hirschauer LLP, we have that knowledge and experience. Contact us right away to determine whether you may have grounds for seeking dismissal of an Indiana protection order. For a consultation, call us at 317-648-9560 or complete our online contact form.