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:
- There is a domestic relationship between the two (e.g. spouse, roommate, child in common, blood relationship)
- An act of domestic violence can be shown (an enumerated crime such as aggravated assault, kidnapping, sexual conduct with a minor)
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.