When is a child order of protection available?
An order of protection may be sought on behalf of a child in situations where the child has been a victim of domestic violence by a former or current household member or any person stalking the child. Domestic violence itself is broadly defined by statute as abuse or stalking. Abuse generally encompasses, but is not limited to, assault, battery, coercion, harassment, sexual assault, and unlawful imprisonment. Child discipline, such as spanking, does not constitute abuse as long as it is performed in a reasonable manner. Stalking occurs when a person intentionally engages in a pattern of conduct that serves no legitimate purpose, causes fear of physical harm, and is repeated over time.
Who can file?
A verified petition for a child order of protection may be filed by a parent or guardian of the child, the juvenile officer, or guardian ad litem or court-appointed special advocate that has been appointed for the child.
The petition may be filed in the county where the child resides, where the respondent may be served, or where the alleged abuse took place. Orders of protection are designed for immediate access and are generally pro se friendly. Court clerks are available to explain the filing procedures and provide the necessary forms to petitioners who are not represented by counsel. There are no filing fees for child orders of protection.
What happens next?
Once a verified petition has been filed, a guardian ad litem or court-appointed special advocate will be appointed for the child. A hearing will be set for no later than fifteen days after the filing of the petition. To provide relief for the time that elapses prior to the hearing, the court may issue an ex parte order.
Ex Parte Orders
Ex parte orders essentially provide temporary relief. Upon the filing of a verified petition, an ex parte will only be issued upon a finding that there are no prior or pending orders of custody, and that the respondent is not younger than seventeen years old. If the petition shows good cause, the court can immediately issue an ex parte order of protection. Good cause may be shown by an immediate and present danger of abuse to the child. A respondent does not need to receive notice or have an opportunity to be heard for an ex parte order to be issued.
Intended to protect the child victim, ex parte orders can include terms that the court deems necessary to ensure the child’s safety. An order can restrain the respondent from disturbing the peace of the child, communicating with the child, and abusing or threatening the child. An order can also exclude the respondent the family home or household if the court finds that it is in the best interest of the children remaining in the home, that there is a substantial risk of domestic violence unless the respondent is excluded, and that a remaining adult household member is able to care for the children in the respondent’s absence. An ex parte order can also include a temporary custody order.
An ex parte order remains in effect until the time of the hearing. At the hearing, the court may grant a full order or protection.
Full Orders of Protection
Unlike ex parte orders, full orders of protection are issued after the respondent has received notice of the hearing and had an opportunity to be heard. Personal service upon the respondent is required at least three days before the hearing for the issuance of a full order of protection.
At the hearing, a full order may be granted by the court if the petitioner proves the allegations by a preponderance of the evidence. Full orders of protection can temporarily enjoin the respondent from engaging in same actions and manners as ex parte orders. Upon issuing a full order of protection, the court can also award custody, visitation, child support, and maintenance, all subject to certain conditions. In addition, the court can order the respondent to participate in counseling, pay the cost of any treatment, make rent or mortgage payments, or pay fees for housing and other services that are provided to the child by a shelter for domestic violence victims.
Full orders of protection remain in effect for at least 180 days, but not for longer than one year. The order may be renewed upon another hearing. A finding of a subsequent or new act of abuse toward the child is not necessary for the renewal of a protection order.
For more information on this matter, contact the Kansas City Attorneys of Heartland Law.