Protect Yourself From Domestic Abuse
CIVIL PROTECTIVE ORDERS
There are two kinds of protective orders. The first is a criminal no contact order, which is part of the criminal case for domestic abuse. When a person calls the police after he or she has been hurt, the alleged abuser may be charged with domestic abuse, and a no contact order, also known as a protective order, may be issued. The no contact order usually lasts until the trial on the domestic abuse charge (or until a plea bargain is reached). The State of Iowa, as represented by the county attorney, negotiates with the alleged abuser or the attorney representing the abuser. Sometimes the no contact order is dropped after a plea bargain is struck.
The other kind of protective order is a civil protective order. Any victim of domestic abuse can obtain a civil protective order by going to the clerk of court and asking for the form for protective orders. You fill out the form, and give it back to the clerk. Then you go see a judge. The judge will see you ahead of regular court business, because of the emergency nature of protective orders. The temporary order granted by the judge will be in effect until a hearing on the case can take place-usually about 10 to 15 days after you first get the temporary order.
This page is a general summary of domestic abuse law and procedures. It is not meant to explain completely the subjects in this page. IT IS NOT A SUBSTITUTE FOR LEGAL ADVICE.
If you need a lawyer but cannot afford one, contact Iowa Legal Aid at 1-800-532-1275 (voice and TTY), or 1-800-272-0008 (en Espanốl).
If you need a safe place to stay, call the Iowa Domestic Abuse Hotline, at 1-800-942-0333.
WHAT ARE THE LEGAL REQUIREMENTS FOR A DOMESTIC ABUSE PROTECTIVE ORDER?
Domestic abuse takes many forms. However, not all domestic abuse fits under the legal definitions included in Iowa's domestic abuse law, Chapter 236, Section 236.2. You must know what must be proven to get a protective order or other help under Chapter 236.
The legal requirements you must prove are these:
1. Relationship: You must show that you and the abuser meet ONE of the following:
- Presently married, even if you are not living together.
- Divorced or separated, whether or not living together.
- Living together (co-habitating) in an intimate relationship with the abuser at the time of the abuse.
- Living together and related by blood (such as parents) or by affinity (such as adoption or marriage).
- You and the abuser are parents of the same child who is under 18 years of age.
- You and the abuser lived together at some time during the past year and were in an intimate relationship.
- You and the abuser lived together at some time during the past year and were related by blood or affinity.
- You and the abuser are dating.
- You and the abuser were dating and have had contact within one year of the assault.
2. Abuse and present threat of harm: You must show that an assault, as defined in Iowa Code section 708.1,has occurred. Assault means ONE of the following must have happened:
There is a form petition available free of charge at the Clerk’s office which you can use to file for a protective order. It gives very clear instructions. Parts of the form ask you to describe the relationship and to give details about what abuse has happened to you. If you pay careful attention to the instructions on the form petition, you will provide enough information so that the judge has the facts needed.
- Someone physically abused you; OR
- Someone pointed a gun at you or displayed a dangerous weapon (such as a knife) toward you in a threatening manner; OR
- Someone threatened you with physical contact which would cause pain or injury; AND
- The threat put you in fear, AND
- The threat could be carried out immediately.
3. Residence: You or the abuser must live in Iowa. You must file your form petition in the courthouse located in the county where either you or the abuser is living.
B. What if I am younger than 18 years old?
If you meet the three legal requirements of relationship, abuse and present threat of harm, and residence, you may get a protective order under Iowa law. If you are emancipated, you can file the forms yourself. Iowa law does not specifically define what it is to be an emancipated minor. You may be emancipated if you are under 18 years of age and are legally married. You should talk to a lawyer for help if you want to file on your own as an emancipated minor. If you are not yet 18 years old and are not emancipated, you cannot file for a protective order on your own. You must have your parent or legal guardian file for you. The Clerk of Court has special forms for parents and guardians of minors seeking relief from domestic abuse. Since you are not yet a legal adult in the eyes of the law, the only way your situation is different is that you cannot file without your parent or guardian. Except for filing, all the other parts of the law apply to you and the abuser. It is vital that you read the rest of this book for more information on protective orders and the ways they may help you or hurt you.
C. What can the court do to protect me under Chapter 236?
Under this law, the court can do many things to protect you. The court can order, for example:
The court can issue three kinds of protection orders. The judge assumes that the reason you ask for either a temporary order or an emergency order is because you want a permanent order.
- That the abuser stops abusing you.
- That the abuser leaves the house or apartment.
- That the abuser provides you with some other place to stay.
- That the abuser stays away from where you live, where you go to school and where you work.
- Who will have custody of the children and special precautions for their safety.
- Visitation of the children with special arrangements for when the abuser can visit the children and how he can visit, without having any contact with you.
- Financial support for your children and for you.
- Counseling for you, for the abuser, and for the children. You or the abuser will probably have to pay for any court-ordered counseling.
Temporary order: Issued the same day you file the petition asking for protection. Good until the time of the court hearing, normally within fifteen days of the day the temporary order is issued.
Permanent order: Issued at the end of the court hearing held within fifteen days of getting the temporary order. At the hearing, you prove that abuse took place, and the abuser has a chance to prove that abuse didn’t take place. Good for up to one year and may be extended unlimited times.
Emergency order: Issued at night or over a weekend when the courthouse is not open. Good for 72 hours. If you need an order at night or over a weekend, call the domestic abuse program nearest you (see page 34) or the Iowa Domestic Abuse Hotline, at 1(800) 942-0333.
D. If I decide not to get a protective order, are there other ways I can protect myself?
Yes. If you don’t want or don’t legally qualify for a domestic abuse protective order, there are other things you can do.
1. Prepare a safety plan. Think ahead. What can you do if you need to leave in a hurry? Where can you go? What will you take with you? What money will you have available? You are in the best position to know what danger you and your children are in and what steps might keep you safe. The domestic violence centers around the state (the list is on page 34) can help you prepare this plan. You MUST prepare this plan no matter what other options you use. Some abusers obey court protection orders, and others do not. Some women are actually in more danger when they take steps to leave or make the abuse public.
2. Divorce. Begin divorce proceedings (Chapter 598 of the Iowa Code) immediately and seek a protective injunction in the divorce case. You will need a lawyer to do this.
3. Writ of injunction. Even if you don’t qualify for a protective order under Chapter 236, you may get some help through a writ of injunction. You can get a writ of injunction as part of a divorce (see number 1, above). If you are not married, a lawyer can ask the court for a writ of injunction to protect you. There are no "pro se" forms for this writ of injunction. You will need a lawyer.
4. Move. Move away and/or go into a shelter or other safe and hidden place. The domestic violence program nearest you can help you with this.
5. Criminal charges. Request that the police or county attorney file criminal charges against the abuser and ask the judge to order "no contact" while the criminal case is pending.
E. How can I choose what to do?
Only lawyers can give you advice on your legal options, such as recommending divorce or a protective order, or deciding what to put on your court papers. Victim advocates at domestic violence programs and Clerks of Court may give you the papers and some guidance throughout the court processes. The law prohibits them from providing the types of services that lawyers traditionally do, such as giving you advice or making recommendations. Domestic violence centers can help you keep yourself and your children safe. Call the hotline (1-800-942-0333) or the shelter in your area, which is listed on page 34.
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WHAT TO DO TO GET A PROTECTIVE ORDER?
Each courthouse has its own way of following the pro se law. A domestic abuse advocate can guide you, or the Clerk of Court can give you information. This page gives you general information only.
H. Where do I go?
Go to the county courthouse in the county where you or the abuser lives. When you get to the courthouse, find the office of the Clerk of Court. Tell them that you are there to file a pro se petition for relief from domestic abuse. You will be given a form to fill out. Your advocate or someone from the Clerk’s office can help you.
I. How do I fill out the forms?
The form petition is an official legal document, and it gives you step-by-step guidance. You MUST read it very carefully and ask questions if you do not understand what it says. This is a very serious matter involving both your protection and safety, as well as the legal rights of you, your children, and the abuser. The information you give must be correct and truthful. If you are unsure of some fact, do your best, but don't write down what you don't know for certain.
You can fill out the forms at the courthouse or at some other place. Complete the form, but DO NOT SIGN IT. Your signature has to be notarized. This means that you have to sign it in front of a person who is a notary. The clerk’s office will have a notary who can witness your signature and notarize it. You should bring a picture I.D., if you have one, to show the notary.
J. What if I don’t have any money?Per Iowa Code §236.3, filing and service fees shall be waived for the plaintiff. However, the court could order that these costs be paid by the abuser.
K. If I am in danger of continued abuse, what do I do?When the forms are completed and filed, ask the Clerk’s office how you can get a judge to review your case as soon as possible. In some counties, judges are available only at certain times of the day or certain days of the week. If there is not a judge available in the county where you are, the Clerk of Court can fax your request to the nearest available judge for immediate action. Ask the Clerk for more information.
The petition will be given to the judge either by the Clerk’s office, or by you. Some judges will want to visit with you and ask you questions before they enter the order. Other judges will enter the order on the basis of the forms alone.
L. How do I have the court papers delivered to the abuser?
The judge's order is not in effect until the abuser has received it. The Clerk's office makes official copies of all papers completed by you or the judge that day, including your petition and the judge's order. The sheriff must serve these papers to the abuser, often face to face. Therefore, either you or the Clerk must give them to the sheriff. Find out from the Clerk whether the Clerk's office will deliver the papers to the sheriff for service or whether you must. You will need to give the sheriff's office all the information you have about where they can find the abuser--where he works, where he might be staying, the names and addresses of his friends, or other places he might spend time.After any order, temporary or permanent, is issued by the court, the Clerk's office must give it to the 911 dispatch center in that county. Police throughout Iowa and other states can find out about your order by checking a computerized registry of orders.
M. Can I have a copy of the protective order?Yes. The Clerk of Court should give you an official copy of the order before you leave the courthouse. Keep it with you always and show it to the police if necessary. You can also make copies and give them to people at work, at the children’s daycare, or anywhere else the judge ordered the abuser to stay away from.
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WHAT DO I DO AT THE HEARING FOR A PERMANENT ORDER?
1. Why is there a hearing?The purpose of a hearing is for each side to tell the judge what has happened so the judge can decide what to do. The only thing the judge will know about your situation is what you prove--or what the abuser proves--at the hearing. It isn’t enough that you told the judge what happened when you filled out your petition. At the hearing, you must prove that what you put in the petition is true. (See "What do I do to get ready for the hearing" on page 13.)
2. Why must I attend?When you are involved with the court system, legal rights and important personal rights are at stake. Decisions are made that may affect every aspect of your life. You need to be there and be prepared.
3. What if the abuser doesn’t show up?The abuser may not show up because he has not received copies of the judge’s order and your petition. You can call the Clerk’s office before the hearing to find out if he did receive these copies. If he did not, and he doesn’t show up, the judge must postpone the hearing to another date. If the abuser does not show up at the hearing but did receive the court papers, the Court may enter a judgment in your favor by "default." That means the Court takes what you said in your petition as true and enters an order on that basis. Some judges may require you to testify before they issue the order, even if the abuser does not come to court.
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WHAT DO I DO AFTER I GET AN ORDER FROM A JUDGE
1. Enforcing your protective order
When the Court signs a protective order under Chapter 236 (or an injunction) the Clerk of Court will give you a copy. You should keep this copy with you at all times, in case you need to show it to the police. You should also make copies for your children's school or daycare, your place of work, or other places you or members of your family regularly go.
The Clerk also must provide a copy of this protective order to the police who operate "911." All law enforcement centers in Iowa and other states can find out about your order by checking a computerized registry.
If the abuser disobeys the judge's protective order--such as by calling you or by coming over when he has been ordered not to--you should telephone the police or the county sheriff immediately. The police are supposed to investigate your call. They will decide whether they believe that the abuser violated the order. If the police decide that he has, THEY MUST ARREST THE ABUSER RIGHT AWAY, AND TAKE HIM TO JAIL. THE ABUSER SHOULD STAY IN JAIL UNTIL HE SEES A JUDGE.
If you do not call the police, or if you call them but, they do not arrest him, you can still take action to enforce the order. If you believe that the abuser disobeyed the order, and especially if you are afraid of him, you should go to the courthouse and tell the Clerk of Court that you want to "start contempt proceedings" against the abuser. The clerk can give you some forms to fill out to start this contempt action. You may have to see a judge to tell him or her what happened and show him or her your papers so that the judge can decide whether to go forward with the case.
Before the court will punish the abuser for disobeying the court order, another court hearing will have to be held. The abuser will be given notice of the time and date of this hearing and why it is being held by having the sheriff or judge serve him with another set of papers.
Whether you have an attorney, or you act as your own attorney, YOU MUST ATTEND THIS HEARING. If you do not, the contempt action will probably be thrown out. If you are acting as your own attorney, it is your job to prove that the abuser disobeyed the court's order. You can do this by proving that he called you, bothered you at work, assaulted you again, or did something else he was not supposed to do. The same suggestions that were made in the portion of this page on proof at the first hearing apply here as well. Prepare ahead of time. Bring witnesses, such as the police who came to your house, or exhibits, such as the police report. Tell the court what happened to you. Prepare to ask questions of the abuser or his witnesses.
2. Extending your order
As of July 1, 1999, you can ask the court to extend your order for an additional year. If the court grants it, you can have your order extended for periods of one year without limitation. You do not have to have lived with the abuser since the order was issued in order to apply for an extension.
To extend your order, you need to fill out the "Request to Cancel or Change a Chapter 236 Protective Order" on page 29. You must submit this form to the court before your order expires. When filling out the request you should check the box marked "Change the court's order regarding other provisions in the Protective Order" and write in "extend order for another year."
The judge will set a hearing to consider your request. The abuser will be informed about the hearing and will be allowed to present evidence. You will need to prove that the abuser still poses a risk to you, people you live with, or members of your immediate family. To prepare for the hearing, review "What is proof?" on page 13, "Your own testimony" page 18, "Some things to make the hearing go smoothly" page 18, "How is a hearing usually conducted?" page 19, "Exhibits" page 20, "Cross-examination" page 21, and "Objections to Evidence" page 21.
DEFINITION OF TERMS
AIDING AND ABETTING: A crime charged against a person who assists another in committing a public offense (such as violating a protective order). A person can be found guilty of aiding and abetting even if the person who was responsible for the crime is found not guilty.
BATTERER’S EDUCATION PROGRAM: A weekly program (for 14 to 24 weeks) run by the probation office, which an abuser must complete if a judge orders him to do so. The program gives the abuser a chance to see how he abuses, why he does, and what he can do to change. There is no guarantee that the program will stop the abuse. The domestic violence program nearest you can give you more information.
BURDEN OF PROOF: The plaintiff has the "burden of proof." The burden of proof is the duty to prove that the abuse happened and that the judge should issue an order. A party usually meets the burden of proof by introducing sworn testimony of witnesses or by introducing exhibits (see EVIDENCE).
CONTEMPT OF COURT: The failure or refusal of a party to obey an order of the court, or an injunction of the court. Someone found in contempt of court can by punished by fine or a jail term, or both.
COURT REPORTER: Someone who makes a complete record of everything said at a hearing.
DEFAULT: The abuser may not show up at the courthouse for the hearing after he was given notice to do so. He may have "defaulted." Usually the judge will grant all the requests that you made. This is called a "default judgment."
DEFENDANT: The person against whom the lawsuit is brought. The person who did not ask for a protective order. In this page, we have referred to the defendant as the "abuser."
EVIDENCE: All types of proof, which a party may present under certain legal rules at a hearing or trial. Testimony of witnesses, documents, records, pictures, exhibits, and so on may be evidence. You present evidence to persuade the judge that that you should win the case.
EX PARTE: It is called an "ex parte proceeding" when the plaintiff files a petition asking for temporary protection before the abuser gets official notice from the court, and the judge issues an order without listening to both sides of the case.
HEARING: The time when the parties present evidence to the judge so that the judge can decide whether to give the plaintiff what is requested. Hearings may be EX PARTE (see above). Hearings also may be adversarial--that is, with both parties present in the courtroom presenting evidence and cross-examining each other’s witnesses.
INJUNCTION: A court order which requires the abuser to stay away, leave the house, pay money, visit the children under set conditions, etc. A person may be held in contempt of court for violating an injunction.
NOTARY or NOTARY PUBLIC: Someone who has the authority to show that you signed a statement or document. A notary may be found at the courthouse and at many banks.
NOTICE: When a person is given information about a fact, usually that legal action may be taken against him, he has "notice." For example, when an abuser is given your application for a protective order and the court's order setting the time for a hearing by a sheriff, he has been given "notice." (See SERVICE OF PROCESS.)
ORDER: A command or direction of a judge, in writing.
PETITION: The first paper filed with the Clerk of Court by a plaintiff in a lawsuit. The petition contains your statement describing abuse and asking the court to issue a protection order. This petition will be given to the abuser so that he can prepare a defense.
PLAINTIFF: The person who starts the lawsuit, usually to ask the court to order certain things he or she is entitled to by law. The plaintiff is the person who must prove the facts in a lawsuit.
PRO SE: This is a Latin term meaning "for oneself." Persons have a constitutional right to act as their own lawyers in court, to go pro se. On July 1, 1991, Iowa's domestic abuse law (Section 236.2(5) ) was changed to clarify this right. Section 236.3A makes exercising this right easier by ordering the Attorney General's office to print forms which pro se plaintiffs can use. Clerks of court in each county courthouse must give them to plaintiffs at no cost. Samples of the forms are included at the back of this page.
PROTECTIVE ORDER: An order of a court to protect a person from certain conduct, such as harassment, assaults, or threats. Under Iowa’s domestic abuse law, the order may also direct the abuser to leave the house, to pay money for child support, and do other things to prevent domestic abuse. The order may determine child custody and visitation while the order is valid.
Temporary order: Issued the same day you file the petition asking for protection. Good until the time of the court hearing, normally within 15 days of the day the temporary order is issued.
Permanent order: Issued at the end of the hearing. At the hearing, you prove abuse took place and the abuser has a chance to prove abuse didn't take place. Good for up to one year and may be extended for a year at a time, indefinitely.
Emergency order: Issued at night or over a weekend when the courthouse is not open. Good for 72 hours.
RESIDENCE: Place where one actually lives.
SERVICE OF PROCESS: For protective orders to take legal effect, they must be given to the abuser. Service gives the abuser NOTICE (see above) that a domestic abuse action has been started against him and lets him know what the court has ordered.
Process: The legal papers (here, the petition, affidavit, orders) filed with the court in a lawsuit which the party is entitled to have.
Service: Delivery of court documents to the party, usually (but not necessarily) by the sheriff, or other person whose business it is to "serve" papers. The sheriff may require you to provide information about the abuser's whereabouts (for example, address, work place, and hours) to assist the sheriff in finding the abuser.
SUBPOENA: A legal paper directed to a witness, telling him or her to appear at a specific date and time to testify.
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