Domestic Abuse Orders for Protection
- by Eric C. Nelson, Attorney

1. Definition of Domestic Abuse.

Domestic abuse is defined as any of the following committed against a family or household member: [1]
  • physical harm
  • bodily injury
  • assault (the infliction or attempted infliction or bodily harm)
  • the infliction of fear of immediate physical harm, bodily injury, or assault
  • terroristic threats (threatening to commit a crime of violence against another)
  • criminal sexual conduct
2. Who May Petition for Protection?

The domestic abuse order for protection is only available to the family and household members of the abuser. "Family or household members" means the following people: [2]
  • current spouses
  • former spouses
  • parents and children
  • persons related by blood
  • persons who are currently residing together
  • persons who have resided together in the past
  • persons who have a child in common
  • a man and a woman if the woman is pregnant and the man is alleged to be the father
  • persons involved in a significant romantic or sexual relationship
If the person abused is a minor, then the minor's guardian may bring the petition on the minor's behalf.

3. Relevance to Custody Proceedings.

An Order for Protection is a cheap, quick, and easy way to obtain temporary custody, child support, spousal maintenance, and possession of the house and everything in it. It is a crippling blow to the recipient, who must quickly deal with the immediate issue of finding a place to live and not having access to his or her home, while the accuser is comfortably moving on to further stages of the custody battle.

Worse, once an Order for Protection is obtained, this document is repeatedly photocopied, flagged, highlighted, waved around like a red flag, and referred to in ominous tones at every opportunity by counsel for the “victim.” Whether rightly or wrongly issued, it creates a bad first impression and predisposition for any judge, custody evaluator, guardian ad litem, or other third person involved with the case.

Because an Order for Protection can be such a powerful weapon, it is often abused. Many allegations of abuse are wholly fabricated. Many are gross exaggerations. Any physical contact during an argument becomes an assault. Any vague comment about future possibilities becomes a “threat.” For example, a client once retained me in a divorce, who had previously had an OFP issued against him for telling his wife that she would come to regret her decision to pursue divorce. The spouse said that made her feel threatened. The Court bought it, and issued the OFP.

The fact that OFPs are so often abused has had two perverse results:

1) False abuse claims can result in great advantage in custody cases, to the harm of children, who suffer from the lack of contact with the other parent. I’ve heard more than one judge state from the bench that he must “err on the side of caution” and grant the OFP. (This is contrary to law and downright asinine, because it doesn’t take into consideration the harm that the erroneously issued OFP will have on the children). Nevertheless, this attitude is all too prevalent on the bench.

2) The other perverse result is that legitimate abuse claims can and do get rejected by judges who are biased in the other direction, denying orders for protection in the belief that the abuse claim is a fraudulent attempt to gain advantage in custody proceedings, when in fact the abuse was very real.

4. Tactical Considerations.

1) If you should be so unfortunate as to become the Respondent in Order for Protection proceedings, where custody and parenting time of children is at issue, it is extremely important to retain an attorney as soon as possible, so that your attorney has as much time as possible to prepare for the OFP hearing, including to subpoena witnesses if necessary. OFPs figure largely in child custody cases, even when they’re issued on behalf of the spouse only and not the children. It is essential to defend aggressively against them.

2) If OFP Petitioner has ever committed acts of domestic abuse against you, it is almost always advisable to bring a counter-petition for an OFP yourself, to be heard at the same time as the Petitioner’s case against you. This requires that you act very fast once you are served.

3) If you are the victim of domestic abuse and need an OFP, don’t delay in seeking it, because if you do, your motives will be called into question along the lines of: “if you really were in fear, why did you wait X number of days/weeks/months to seek and Order for Protection?” Better to drop everything and bring your Petition for an OFP immediately after the abuse occurs.

4) Particularly if you are the Respondent in OFP proceedings, if you know that divorce/child custody proceedings are inevitable, it is strategically wise to commence the divorce or child custody petition immediately, before the OFP hearing takes place, for a couple of reasons:
  1. it makes the context of the situation clear to the Court, and gives more credibility to the argument that the Petitioner is seeking the OFP only to gain advantage in the child custody dispute.
  2. it signals to the Court that even if it grants the OFP, it can defer issues of custody, parenting time, child support, and spousal maintenance to the dissolution proceedings, where such issues will be decided with much greater care and deliberation than in OFP court.
5) If you are afforded the opportunity to agree to the issuance of the OFP without findings of domestic abuse, this is usually a very bad idea. The only time it makes sense is when you are clearly guilty of domestic abuse, and it is clear that the OFP is going to be issued even if you contest it. An attorney assess that likelihood for you and help you make the right decision.

6) If you lose the OFP case, strongly consider appealing it. Legally you have nothing to lose by doing so, and it gives you greater credibility as you continue to assert your innocence throughout the divorce proceedings. The appeal process takes about a year. And although the odds of winning are statistically low, you just might prevail. Really the only contrary consideration is cost. An appeal will cost several thousands of dollars in attorney’s fees and costs. So you should not appeal if it means not being able to afford ongoing representation in the divorce/child custody case.

5. Ineligibility to Possess Firearms.

An often overlooked consequence of an Order for Protection is that the person restrained thereby may not possess any firearm for as long as the order remains in effect. [3] Violation is a federal felony offense punishable by up to 10 years in prison. [4] So if you’re a hunter, this can be an important consideration.

  1. Minnesota Statute section 518B.01, Subdivision 2(a).
  2. Minnesota Statute section 518B.01, Subdivision 2(b).
  3. United States Code, Chapter 18, Section 922(g)(8).
  4. United States Code, Chapter 18, Section 924(a)(2).