Order of Protection Intro

In family law cases that involve children, the court will at some point inevitably enter parenting time orders directing when each parent will have time with their child or children. In some cases, one parent will seek and possibly obtain an order of protection against the other. If the circumstances warrant it, sometimes the order of protection will also include the parent’s child.

The question then becomes which order controls: the order of protection, or the parenting time orders. In addition, is there anything that can be done if conflicting orders exist. This article addresses two recent, and perhaps the most pertinent, cases on this particular dilemma.

Criteria and Procedure

An order of protection is commonly referred to as a protective order in common parlance. An order of protection can be obtained by one spouse or parent against another if certain criteria is met. In short, the court must find that the defendant has committed an act of domestic violence or it is reasonably likely that he/she will commit an act of domestic violence.

What encompasses an act of domestic violence is fairly broad, but in essence it has to be based on some type of crime. In my experience, the three most common forms of domestic violence that I encounter are harassment, assault, and custodial interference (and probably in that order). However, there are many other acts that also can be labeled as domestic violence.

To obtain an order of protection, you can go to a municipal or justice court. You could also go to the superior court. Where you obtain the order of protection can have subsequent legal consequences, which is part of the focus of this article.

More often than not, an order of protection is obtained ex parte, which means only one party (the plaintiff) was heard by the court and was granted the order without the presence of the other party. Once an order of protection is obtained, it then has to be served on the defendant to become effective. After it is served, the defendant can request a hearing to contest the order.

Superior Court Jurisdiction

All family law cases (divorce, legal separation, paternity) are handled by the superior court. Therefore, all parenting time orders will be issued by the superior court.

If there is an existing family law case between two parties, then any order of protection case between those same parties that may have been started in a municipal or justice court must be transferred to the superior court.

Conflicting Orders

As you can imagine, there are times where one parent gets an order of protection against the other parent that includes the child, and through other proceedings, both parents are awarded court-ordered parenting time.

In such a situation, which order controls? Well, the answer is simple: the order of protection. Rule 21 of the Arizona Rules of Protective Order Procedure make it clear that when an order of protection and family law order conflicts, the order of protection controls until further order of the court.

Is there anything that can be done? Well, maybe.

In Courtney v. Foster, the Court of Appeals held that the superior court has the authority to modify an order of protection to allow parenting time (e.g., contact between the defendant parent and the child) so long as the court is satisfied that contact would not endanger or otherwise harm the child. This applies when the order of protection came from a municipal or justice (i.e., lower court) court, even if a hearing was held by the municipal court and the order of protection was affirmed.

In contrast, in Vera v. Rogers, the Court of Appeals held that the superior court does not have the authority to modify an order of protection after a hearing on it is held if the hearing is before another superior court judge. In other words, a superior court judge cannot later modify an order of protection that was affirmed by another superior court judge because to do so would be a collateral appeal and not permitted by the applicable statutes.

Which Court to Choose

When seeking an order of protection, some thought should be given to which court you will turn to. If no family law matter is pending between you and the other parent, then you have the option of seeking an order of protection from a municipal or justice court.

If you try to file in a municipal or justice court and there is a family law matter pending in superior court, usually the lower court will review and find that case before proceeding and transfer the order of protection case. So, you will end up in superior court no matter what.

One lesson that can be learned from Courtney v. Foster is that an order of protection obtained in a municipal or justice court will be able to be attacked/modified twice when it comes to removing a child on such an order. The first opportunity would be by requesting a hearing on that order through the issuing lower court. The second opportunity would be through the superior court and request of that court to modify the order to allow parenting time.

In contrast, an order of protection obtained from the superior court will generally only be able to be contested once. This could happen at a hearing wherein the issues of parenting time and the order of protection itself are consolidated under Rule 5 of the Arizona Rules of Family Law Procedure. However, conducting such a consolidated hearing is ultimately up to the judge (over the family law matter).

If that judge doesn’t want to consolidate the hearings, then the defendant parent is left with the option of requesting a hearing on the order of protection by itself. If affirmed, the holding in Vera v. Rogers makes it clear that the family law judge cannot subsequently modify the other superior court judge’s ruling.

Based on this framework, an order of protection obtained through the superior court has more “finality” or at least becomes “final” faster. So, if you think a family law matter is on the horizon, turning to the superior court for an order of protection for you and your child may be a strategy worth considering.

Conclusion

When an order of protection (that includes a child) and a parenting time order conflict, the order of protection will control.

The court that issues the order of protection can impact the opportunities the defendant parent can have in having the child removed and/or otherwise permit parenting time for that parent. Thus, any parent that is seeking an order of protection and desiring to include their child should strongly consider which court to go to when seeking out an order of protection.

Obtaining an order of protection that includes a child on it is not simple. From what I have seen, many judges are generally reluctant to include a child on an order of protection against the other parent as it is (often) overly harsh and has longstanding consequences to address concerns that are (generally) better served by tailored parenting time orders.

An order of protection is something that people want to get due to a recent and often urgent incident. Thus, it’s not always easy or pragmatic to seek the advice of an attorney before trying to get an order of protection. However, to the extent your situation allows for it, it would be beneficial to discuss your situation with a good family law attorney to decide the pros and cons of seeking an order of protection, and which court you should go to for your order of protection.

If you have any questions about this article or would like to know more about getting an order of protection, feel free to contact us here.