Not long ago, I testified as an expert witness in an Arizona Supreme Court
hearing. After being cross-examined – and not in a particularly
successful manner – the presiding judge asked me a question: “Are
Orders of Protection matters of criminal law, civil, or family law?”
“All of the above,” I glibly responded.
What Is an Order of Protection?
In Arizona, an Order of Protection is a restraining order that prohibits
a person from having contact with another if the following circumstances
can be shown:
An Order of Protection can be initially granted
ex parte – that is, with only the Plaintiff present,
though the Defendant is entitled to a hearing upon written request. Hearings must be set within 10 days; five days if the Order gives one
party exclusive use of a residence in which they both lived.
Civil Law Aspects of an Order of Protection
Orders of Protection are civil in nature. You are not entitled to have
an attorney appointed to represent you. There is no prosecutor. The procedural
aspects of the hearing are civil in nature. Instead of using the criminal
law standard of proof beyond a reasonable doubt, a preponderance of evidence
standard is used. That means that the Court needs to find that it is more
likely than not (51%) that an act of domestic violence was committed.
Criminal Law Aspects of an Order of Protection
If you are the recipient of an Order of Protection, the Plaintiff will
essentially be trying to prove that you committed a crime of domestic violence.
- Even though an Order of Protection hearing is civil in nature, you can
still incriminate yourself as anything you say can be used against you
in a subsequent criminal charge against you.
After a hearing, the Court can find that there is a risk of violence to
the Plaintiff and Order that the Defendant not to possess guns or ammunition
for the one year period in which the Order is in effect. A violation of
this provision can be prosecuted as a weapons offense and is a separate
criminal act under Arizona and Federal law.
- In other words, if an Order of Protection against you is upheld after a
hearing, you can lose your gun rights!
Family Law Aspects of an Order of Protection
While I don’t handle family law cases (but would be happy to give
an excellent referral or two), as one of Phoenix’s most experienced
criminal defense attorneys, I am fully aware that Orders of Protection can have significant and devastating
effects on family law cases involving child custody.
Under Arizona family law statutes, evidence of significant domestic violence
can be a basis for a judge to preclude an award of joint custody (joint
legal decision making). If the allegation at issue in the Order of Protection
is child abuse or child molestation, it is an almost certainty that the
outcome of an Order of Protection hearing will be used, either positively
or negatively, in subsequent family court proceedings.
A Criminal Defense Lawyer Is Your Best Chance
Having now realized that while Orders of Protection are a hodge-podge of
different areas of Arizona law, it should be clear that because criminal
acts need to be proven, because anything you say can be used against you,
and because you could lose your gun rights, a criminal defense attorney is
your best chance at a successful outcome.
While I do not practice family law, I often coordinate my efforts with
family law attorneys and handle Orders of Protection in cases where there
are serious allegations such as sexual conduct with a minor, child molestation,
and aggravated assault. By preparing an aggressive defense, I have been
able to show in some cases that allegations were falsely made to get leverage
in family court cases and to flat out be vindictive. I have had many cases
where the judge has recognized the other party’s disingenuous motives
and awarded my client their attorney’s fees.
Contact me for a confidential and personal consultation at (602) 663-9100. Please bring any paperwork you have filed or received
when we meet so I can provide the best and most comprehensive advice possible.