What’s the difference between an Order of Protection and an Emergency Order?
Sometimes things turn for the worse and a person acts out in a manner than is concerning and/or threatening to another person or persons. In these circumstances, there are things that can be done to provide a level of protection for your or your child/ren. A couple of options are Orders of Protection or Emergency Orders. Unfortunately, in family law one or both levels of protection are needed. So what is the difference between the two and how do can someone go about getting one or both?
Orders of Protection
An Order of Protection is an Order that once signed by the court and served on the person whom it is against, is effective in providing an enforcement mechanism to prevent any form or further contact. An Order or Protection is beneficial particularly in cases where someone has or is being abused. The Order of Protection, when granted, will often provide for protection for the person, protection over the person’s home address and protection over their work address as well. In cases in which the parties live together, this will force the person whom the order is against to relocate. Orders of Protection can be obtained in municipal courts or at the superior courts. However, if a family law matter is pending, the superior court will have exclusive jurisdiction over the Order of Protection.
In cases in which children are involved and a parent wishes to include a child or children on the Order of Protection against the other parent, the Court is often reluctant to do so absent specific harm or harassment directed towards the child. In the event there have been one or multiple incidents against the child, the court will allow for the Order of Protection to prevent the other parent from having any contact with the Child.
Orders of Protection are almost always heard without notice to the person whom it is against. Because of this, upon service of the signed order, the served party may request a hearing. Pursuant to the rules, the hearing should take place within ten (10) business days when requested, unless a common residence is listed and in that circumstance within five (5) business days. At the Order of Protection hearing, the party who obtained the Order must prove by a preponderance of evidence that the incident or incidents alleged that led to the Order being granted occurred. If the commissioner feels as though that burden is met, the Order of Protection will be upheld and will continue to be enforceable.
Please be aware that an Order of Protection is a piece of paper. Be sure to carry it around with you wherever you go, get to safety if you are in a precarious situation, and immediately contact the police if the order is being violated.
An Emergency Order, in family court, most often involves children. A party can file a Petition for an Emergency Temporary Order when there is an underlying Petition (Paternity, Dissolution, Modification) and irreparable injury will result if the order is not granted. Rule 48 A.R.F.L.P. Emergency Temporary Orders are fairly difficult to obtain, and for good reason. The Petition for an Emergency Temporary Order is most often provided to the Court without notice to the other parent, and without an initial opportunity for the other parent to present their side of the story. Absent the heightened difficulty in obtaining an emergency order, a parent could easily restrict the other parent’s access to the child without much justification.
If an Emergency Order is granted, the Court should hold a return hearing within ten (10) days from the entry of the order to allow the other parent to present their defense to the other parent’s claims. Rule 48 A.R.F.L.P. At that point the court can uphold the emergency order, modify the emergency order or completely vacate the emergency order.
If you or your child/ren are being harassed, intimidated or abused, please seek the proper relief and don’t be afraid to contact the police.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Orders of Protection and Emergency Orders, or other family law issues, please feel free to contact our Family Law Section at 480.461.5300, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.