• Giugi Carminati

Ten Myths About Protection Orders.

Protection Orders are a useful tool in a domestic abuse victim's arsenal, although they are not the end all be all. I am a civil rights attorney with a significant protection order practice area. I am contracted with several nonprofits in the Denver and surrounding areas to represent victims obtaining protection orders. When I sit down with my new clients, I find myself answering the same questions each time. Evidently, if they have these questions (and concerns) so do people who have not made their way to my office.

So as an aid (and, this is not legal advice) I am listing ten myths I encounter about protection orders.

Also, while these are general principles they are also based on my experience as a Colorado practitioner.

10. Let's start with the basics: it's a two-step process.

A Protection Order in Colorado is obtained in two steps. First, a victim goes before a judge, alone, and explains the situation. This is an ex parte application for a Temporary Protection Order. It is ex parte because the restrained party does not have to receive notice of the hearing. A Temporary Protection Order is obtained same day as long as the victim (the applicant) goes to the protection order court during the protection order docket. (For example, in Denver County, it is in Courtroom 159 starting at 8:30 am most days. Call the Court to double check this is still the case when you read this article).

Once an individual obtains a Temporary Protection Order, two things happen. First, the Court sets a hearing 14 days later at which the restrained party has to appear, with the protected party, to present their case as to why a permanent protection order should be granted. Second, most importantly, the protected party has to get the restrained party served. This is when another individual, over 18, not a party, delivers the protection order paperwork and signs an affidavit to that effect. Usually, restrained parties ask the Sheriff to do it or a private process server (which is more expensive). But, sometimes, if a person is hard to locate (for example, if they are on the run due to a criminal warrant) a family member or friend can do it too.

At the hearing, if the protected party wins, the Temporary Protection Order becomes a Permanent Protection Order. If the restrained party wins, the Temporary Protection Order is vacated.

9. A Protection Order gives you breathing room.

In my experience, while temporary protection orders are straightforward to obtain when there is domestic abuse, assault, harassment, or stalking, a permanent protection order is unfortunately much harder to obtain, even when there is an underlying violation. Very often judges tell my clients, "Well, just stay away from him," and dissolve the only protection my clients had until then. However, when properly managed, a protection order creates breathing room.

A protection order ends any communication between two parties who do not have children and seriously limits the means and content of communication between parties that share a child. The abuser cannot call, text, email or show up as they wish. They can be limited to no or only one means of communication, and even then the content cannot be harassing and has to be limited to a particular topic. (For example, people who share children will be allowed to communicate but only about the child).

Even if a protection order is in place for 14 days, 28 days, or a few months, a protection order creates space. During that time, the victim can begin getting therapy, settle their kids into a more healthy routine, relocate if necessary, find gainful employment, file any family law actions that need to get filed, get medical attention, and come down from the adrenaline overload of living in constant fear. So, even if all you will obtain is a Temporary Protection Order, it will give you and your loved ones space away from the violence and toxicity, and that is critical to recovery and to breaking the cycle.

8. It's just a piece of paper and it is also way more than a piece of paper.

A protection order is an order (duh) issued by a civil court providing that the restrained party (the abuser, stalker, harasser) is restrained from doing certain things: harassing, communicating with, approaching, threatening, insulting, and in any way interfering with the protected party. Those protections are critical, important, and I am so glad the process exists.

But, a protection order is also just a piece of paper. It does not actually physically stop an abuser, so it has its limitation. This is why victims should create safety plans and take other precautions to stay safe. Safety plans are developed by knowledgeable individuals at nonprofits. Project Safeguard in Denver and surrounding counties, TESSA in Colorado Springs, and SPAN in Boulder, for example, assist victims in doing just that. In addition, Colorado has an Address Confidentiality Program that allows victims to hide their addresses. So, the Protection Order is an important tool but it is just one tool.

7. It's better with a lawyer.

While a protected party can obtain a Temporary Protection Order without a lawyer, and most do, it is important to secure an attorney for the Permanent Protection Order hearing. This is a real trial - with witnesses and exhibits. It is critical for a restrained party to be able to introduce evidence and meet the elements of a Permanent Protection Order. A lawyer is a very important part of this process.

6. There are resources for free representation during protection order proceedings.

Now, I know lawyers are expensive. But here are a few options. First, the organizations I mentioned above (Project Safeguard, TESSA, and SPAN) provide attorneys for protection orders free of charge. If you want to go to a private attorney or if your case is not a domestic abuse situation (think other family member, coworker, etc.) you can find lawyers who offer protection order representation free of charge. (My firm, http://www.NDH-law.com does so).

5. A protection order is a civil order with criminal consequences.

The advantage of a protection order is that the burden of proof is "preponderance of the evidence," which is not the criminal "beyond a reasonable doubt" burden of proof but, and this is important, it carries criminal consequences for violation. If the restrained party violates the protection order, the protected party can call the police. Violation of the protection order can result in a fine and jail time. This is a powerful deterrent for violators.

4. A protected party cannot agree to a violation.

Sometimes, restrained parties will reach out to protected parties or show up at their residence and then say, "Oh, they asked me to do that." This can happen for a variety of reasons. One of them is the pattern of gaslighting that the abuser had been using: do something bad, then blame the victim for it. A protection order puts an end to that: a protected party cannot consent to a violation. Period. It's never their fault. It is up to the restrained party to abide by the order and there is no way out of that, short of another court order.

Another helpful consequence of this unilateral restriction is that the victim (protected party) can use someone else's authority to impose boundaries. An unfortunate outcome of abuse is that victims find it terrifying to say "No," to their abusers. When a court order is in place, they can deflect the blame and the authority, "I can't say yes because the Court order does not allow me to." It creates a proxy to break the cycle of power & control.

3. A protection order can be used to keep the victim (and their children) in the family home.

Countless times a client comes to me after she (and sometimes her children) have been kicked out of the house. She (and her children) are homeless or living at a friend's house. A protection order (in Colorado) can make the family home the "protected address." This means that the restrained party is immediately forbidden from returning to it and the protected party has a place to live (with or without children). When a client comes to me and they did not make their home address the protected address, because they thought they couldn't, I ask to amend the protection order to make "home" a protected address. I've seen restrained parties get told, in Court, that they could not return to the apartment they were in, effective immediately. (They do get 15 minutes with a police officer present, called a civil standby, to remove their basic necessities).

2. There are options, options, options once you have a Temporary Protection Order.

When a protected party arrives for their permanent protection order hearing, in Colorado, there are six potential outcomes.

One - 14 day continuance(s): Either side asks for a 14 day continuance. Under Colorado law, if either side asks for 14 days, the judge has to grant it. Let's say the restrained party says they need 14 days. The parties come back 14 days later and at that point, the protected party can then ask for their 14 days. The court will grant it. This means that a temporary protection order can stay in place for 42 days.

Two - hearing: The parties proceed to a hearing. This is a trial, where each side puts on witnesses and evidence. In some counties you can take the whole afternoon and in some counties, unfortunately, you will get 1 hour for the entire matter. This will determine the outcome of whether or not the court will convert the Temporary Protection Order into a Permanent Protection Order.

Three - default: The restrained party does not show up. If they have been properly served, the court will grant a default. That means the Temporary Protection Order is converted to a Permanent Protection Order. You'd be surprised, but this actually happens.

Four - acceptance: In certain limited situations, a restrained party may just accept the permanent protection order. This has big consequences for them but it is sometimes the best option. For example, if the restrained party has a pending criminal case, anything they say in the civil case can be used against them in the criminal case. Also, if the restrained party already has one or more felony convictions, the permanent protection order is no worse on their record than what they already have, so agreeing to it allows them to avoid another hearing and lets them move on.

Five - agreed continuance: This is by far the most common outcome. The parties can agree to "continue" the temporary protection order for up to 12 months. A continuance is when the Temporary Protection Order stays in place, with no changes, for the agreed time period. An agreed continuance is a common outcome because it gives a protected party certainty, avoids a traumatic hearing, and eliminated the restrained party's risk of proceeding to a hearing. It also gives the victim breathing room and, sometimes, gives time for the parties to proceed to a domestic relations case.

Six - voluntary dismissal: I always remind clients that they can stop the proceedings at any point. If they want, they can stand up in Court and ask for the protection order to be dismissed. If the restrained party is in jail and will be for a long time or if the protected party simply does not want to proceed, they can ask for the case to be dismissed.

1. You can absolutely co-parent with a protection order.

The number one reason I hear for a victim of domestic abuse to not want a protection order is the misconception that it will cause either one of them not to see their children again. This is simply false and is often used by abusers to dissuade their victims from getting protection.

A protection order can be fashioned to allow parents to co-parent for up to 12 months (that is how long the protection order court has jurisdiction over the children, by statute). Parents can plan exchanges at police stations, at school, in the community, or at visitation centers. The Court can order supervised visitation. The Court can allow parties to communicate about parenting through dedicated apps. I very often sit in the hallway, drafting up a Parenting Stipulation, that creates a schedule and parenting time.

Domestic abuse is complicated. Sometimes your partner can take care of the children but is not a good parent when they are in a relationship. Sometimes they cannot parent at all. A protected party can present those issues to the Court and come up with a system that works until the family courts get involved.

And that's it. Stay safe. You deserve it.

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