Protection Orders

Domestic Violence should not happen to…

Anybody.

Ever.

Period.

If you are living with violence and need help, please reach out for it. Don’t hesitate, don’t rationalize it away, and don’t wait. Your life is too important to risk it that way. If you need help, advice, or other assistance, please contact one of the groups listed at the top of our resources section. If you need a protection order, please contact me and I will fight to get one for you, at no cost to you.

What is the ‘civil’ definition of domestic violence (for the purpose of obtaining a civil protection order)?

The civil definition of domestic violence differs from the criminal definition in that the former does not require the abuser to “knowingly” cause or attempt to cause physical injury to the victim. Specifically, the definition of “domestic violence” for the purpose of obtaining a civil protection order (CPO) is:

1. Attempting to cause bodily injury to a family or household member;

2. Recklessly causing bodily injury to a family or household member;

3. Placing a family or household member by the threat of force in fear of imminent serious physical harm or committing menacing by stalking or aggravated trespass against a family or household member; or

4. Committing child endangerment (child abuse) against a family or household member; or

5. Committing a sexually oriented offense (such as rape, gross sexual imposition, or importuning).

It is easier to prove domestic violence for the purpose of obtaining a civil protection order (CPO) than it is to prove criminal charges of domestic violence because of the lesser standard of proof (“by the preponderance of the evidence” in CPO cases vs. “beyond a reasonable doubt” in criminal cases). Proof “by a preponderance of the evidence” means that it is more likely than not that acts of domestic violence occurred. It is also easier to prove the grounds for a CPO because it is not necessary to prove that the abuser intentionally caused bodily injury to his family or household member.

What is the difference between a restraining order and a civil or criminal protection order (CPO)?

Both a restraining order and a civil or criminal protection order (CPO) may order an abuser not to abuse or harass a victim of domestic violence. However, in Ohio, these orders are very different legal tools.

A domestic relations court may issue a restraining order in a divorce or legal separation case to protect one spouse from the other, abusive spouse. The restraining order remains in effect and is enforceable as long as the divorce or legal separation case is pending. It expires upon the termination of the divorce or legal separation case. Enforcement is limited.

If the abusive spouse violates the restraining order, the protected spouse may file a motion for contempt against the violator in the same court which granted the restraining order. Police and other law enforcement officers do not enforce restraining orders. As a result, the burden of enforcement is upon the protected spouse and his or her attorney.

By contrast, law enforcement officers anywhere in the State of Ohio must enforce civil or criminal protection orders, preferably by arresting the violator under the State’s preferred arrest policy set forth in R.C. 2935.03(B)(3) and 2935.032. Law enforcement officers must also respond promptly to any report of a violation of a protection order. In addition, a protection order – especially a civil protection order – may contain additional provisions such as evicting the abuser from the parties’ home, awarding temporary child custody or temporary support to the domestic violence victim, or ordering both parties to obtain counseling.

What is the criminal definition of domestic violence in Ohio?

The offender must:

1. Knowingly cause or attempt to cause physical harm to a family or household member;

2. Recklessly cause serious physical harm to a family or household member; or

3. Knowingly cause a family or household member to believe that the abuser will cause imminent physical harm to the family or household member. See R.C. 2919.25.

What people are covered by Ohio’s domestic violence laws?

The domestic violence laws apply to persons who abuse a family or household member. “Family or household member” means any of the following who is residing or has resided with the offender:

1. A spouse, a person living as a spouse, or a former spouse of the abuser;

2. A parent or child of the abuser, or another person related by blood or marriage to the abuser:

3. A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by blood or marriage to a spouse, person living as a spouse, or former spouse of the abuser. A “person living as a spouse” is a person who is not married to the abuser, but is either cohabitating or has cohabited with the abuser during the past five years. “Cohabitation” means the sharing of family and household responsibilities, including household finances, and having an intimate or close relationship between the abuser and the victim.

In addition to the above categories of persons who are living or have lived together, persons who have a child in common are covered by the domestic violence laws regardless of whether they have ever lived together or cohabited. Therefore, the mother of a child could file domestic violence charges or request a domestic violence protection order against the father of the child regardless of whether they are married, have been married, or have ever cohabited. See R.C. 2919.25(E) and 3113.3(A)(3).

What does ‘cohabitation’ mean?

“Cohabitation” means that two adults are living together in the same household, sharing certain obligations which are equivalent to a spousal-type relationship. The Ohio Supreme Court has concluded that a person is “cohabiting” for purposes of a family or household or family relationship under the domestic violence statutes if there is:

1. a sharing of familial or financial responsibilities; and

2. consortium.

State v. Williams (1997), 79 Ohio St.3d 459.

“Familial or financial responsibilities” include providing shelter, food, clothing and utilities and commingling (mixing together and sharing) assets. Id.

“Consortium” includes mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal (sexual) relations. Id.

Some critics of the Supreme Court’s Williams decision have said that even mere roommates could be covered by the domestic violence laws in light of this broad definition of “cohabitation.” However, as a practical matter, it is unlikely that the Ohio courts will apply this definition to cover mere roommates; there must be a close personal or intimate relationship (usually involving sexual relations) for persons to be “cohabiting” within the meaning of Ohio’s domestic violence laws.

Can “same-sex” couples qualify as “family or household members” under Ohio’s domestic violence laws?

Yes. The protections afforded to male/female relationships are equally available to same-sex relationship. If the same-sex couple consists of two adults living together in the same household, sharing curtain obligations which are equivalent to a spousal type of relationship, they meet the legal definition of “cohabiting.” Therefore, the victim of violence in a same-sex relationship can file domestic violence charges or seek a domestic violence protection order against the abuser. See State v. Hadinger, 61 Ohio App. 820 (Franklin 1991); State v. Yaden, 118 Ohio App.3d 410 (Hamilton 1997).

Does a couple have to live together for a minimum period of time before they have a “family or household member” relationship subject to Ohio’s domestic violence laws?

No, there is no minimum period of time. The protections of the domestic violence laws are equally applicable to couples who have lived together for years and to couples who have been living together for only a few weeks. However, in cases where the abuser and the victim are not married to each other, it may be easier to convince the court that the parties’ are “cohabiting” if they have lived together for a reasonable period of time.

What form do I need to complete to get a civil protection order?

If you or a family member are being physically abused or threatened with harm by a family or household member (person living in your home, even if not related to you by marriage or blood) you can apply for a domestic violence civil protection order now.

Upon the filing of a criminal complaint alleging the crime of Domestic Violence, the Criminal Court can issue a Temporary Protection Order (TPO)

1. The motion for a TPO can be filed by the complainant (victim), by the arresting officer, or the Court can issue one on its own (“sua sponte”), if the Court finds that it is necessary for the “safety and protection” of the victimCourt must hold a hearing on the motion for a TPO within 24 hours of it being filed with the clerk’s office
2. The TPO lasts only during the pendency of the criminal case and as soon as there is a disposition (convicted/acquitted), the TPO automatically terminates

But, the Court can issue an Order at the disposition of the criminal case that requires the Defendant to stay away from the victim

OR THE VICTIM CAN

1. File for a Civil Protection Order – O.R.C 3113
2. The Petitioner must file the petition in the appropriate county Common Pleas Court, usually in the Domestic Relations Division
3. Normally, petitioners first obtain an Ex Parte TPO immediately, then later obtain a CPO that will last for a certain period of time (no more than 5 years) and contain specific restrictions on the respondent

There are prepared packets available at the Clerk’s office that are legally sufficient motions for pro se petitioners to fill out and file with the Court

1. The Ex Parte Temporary Protection Order (TPO)
2. If Petitioner requests one when filing for the CPO, the Court can issue an emergency Ex Parte Temporary Protection Order

“Ex Parte” basically means without the other party participating in the proceedings

• If Petitioner does request an Ex Parte TPO, the Court must hold a hearing on the same day the petition is filed – O.R.C. 3113.31(D)(1)

• At the Ex Parte hearing, the Petitioner will testify and present other evidence, but the respondent will not be present and will not put forth any evidence or controvert the Petitioner’s evidence

• As long as the petitioner puts forth sufficient evidence, the Court will issue a TPO and schedule a full hearing after which it will decide whether to issue a more permanent CPO

The reason the ex parte order is temporary is because it will last only until the court holds the full adversarial hearing at which Respondent will be able to present evidence and controvert the Petitioner’s evidenceDue Process mandates that respondent to have a say in court as to the allegations, and to have an ex parte order last for an extended duration would certainly tread upon constitutional rights.

• The full hearing must be held within 10 days of the ex parte order, unless the respondent has been ordered to vacate his home

• If Respondent has been ordered out of his home, the Court must hold the full hearing within 7 days

The standard for issuing the ex parte order pending the full hearing is “For Good Cause Shown”

• Good cause for issuing a TPO is Evidence sufficient to demonstrate an Immediate and Present danger of domestic violence to a family or household member of the perpetrator

• Although Domestic Violence is defined elsewhere in the statute, the O.R.C. 3113.31 actually defines “Immediate & Present Danger of Domestic Violence” for purposes of an Ex Parte TPO specifically

• Immediate & Present Danger of DV includes, but is not limited to:Threats of bodily injury to a family or household member, or

The perpetrator has previously been convicted of the crime of Domestic Violence; basically, if the respondent has previously been convicted of DV, it is probably best to go ahead and issue the TPO to be on the safe side until the full hearing can be held

Civil Protection Order Hearing

This hearing will be held 7-10 days after the Ex Parte hearing, and the Respondent must be properly served with notice of the hearing – service must be accomplished pursuant to Ohio Civil Rules 4.1-4.6 (normally certified mail or sheriff)

There are several types of conduct that warrant issuing a Domestic Violence CPO, as “Domestic Violence” is defined broadly in the statute; the petitioner need not have suffered actual physical harm – See O.R.C. 3113.31(A)

In order to succeed in obtaining a CPO, the petitioner must demonstrate by a Preponderance of the Evidence (more likely than not) that the respondent has engaged in “Domestic Violence”

“Domestic Violence” most commonly includes the following types of conduct:

• Attempting to cause bodily injury to a family or household member

• Success is not necessary – if the perpetrator tries to hurt a family or household member, it is sufficient conduct to warrant a CPO

• Recklessly causing bodily injury to a family or household member

• This would (logically) include intentionally causing bodily injury as well

• But, it does not include negligently causing bodily injury (accidents not sufficient)

• “Intentionally” basically means what it sounds like – it was the purpose of respondent to cause bodily injury to petitioner

“Recklessly” basically means the perpetrator consciously disregarded a known risk that his conduct is likely to cause harm to Petitioner – i.e., he knew there was a probability the victim would be injured, but he engaged in the conduct anyway

• That Respondent made threats that placed Petitioner in fear of imminent serious bodily injury

Note that the injury level for the “threats” version of DV is “Serious”

• Petitioner must testify as to both the threat made by the Respondent and the Petitioner’s actual fear; if no testimony is presented as to Petitioner’s fear, the Court should not issue a CPO due to the threats

• Any threat must be unconditional; conditional threats will not work (e.g., “if you take Bobby, I will kill you”)

• The bodily injury threatened must be “Imminent”; threats of future harm not sufficient

Imminence has been described as “threatening to happen immediately,” “dangerously close to happening” or “just about to happen,” etc

• The respondent must not only threaten immediate harm, but must be capable of following through with the threat as well

Effectively, Petitioner must testify to the following for “Threat DV”:

• The residence of the perpetrator and/or victim – to establish venue

• The Respondent made a threat to Petitioner

• That Petitioner is a “Family or Household Member” of Respondent

• The Threat was of serious bodily injury to Petitioner

• That the serious bodily injury is imminent – about to happen

• That the threat has now placed Petitioner in fear of this serious bodily

In addition, as defined, “Domestic Violence” includes other conduct

• Committing any sexually oriented offense against a family or household member, with sexually oriented offense having the same meaning as is used in O.R.C. 2950.01

• Committing any act with respect to a child that would result in the child being found to be an “abused child” as that term is defined in O.R.C. 2151.031 (part of the juvenile court statute)

• Committing a violation of O.R.C. 2903.11 or 2911.211

Remember: that the Petitioner must testify to the relationship with Respondent, the residence of the parties to establish proper venue, the particular conduct of the Respondent, and (sometimes) that the Victim is fearful

Although fear is only required for the “Threats” version of DV, if appropriate, it is best to have the petitioner testify as to any fear he or she may have of the Respondent.

It is important to note that there can be agreements made between the victim and perpetrator; the parties can agree as to the conditions contained in, and the duration of, the CPO.

Often, agreed entries are part of a negotiated return to the home by the Respondent, where the Respondent is now, under penalty of contempt, required not to commit acts of DV against family and household members

Conditions in a CPO

If the Court issues a CPO, it has many conditions (restrictions) it can impose upon the Respondent.

The Court can also issue an order affecting parental rights of minor children, issue temporary child support orders, and award temporary spousal support as well.

The following is a list of orders the Court can issue in a CPO

• Prohibit respondent from abusing a family or household member

• Prohibit respondent from committing a sexually oriented offense

• Make Respondent leave the residence (there are limitations depending on circumstances)

• Require Respondent to provide financial support for the victims, even if he has been evicted from the residence

• Prohibit Respondent from entering the residence, school, business or place of employment of the victims

• Issue Orders regarding the custody and visitation of minor children

• The Court can award the victim sole custody of the children and prohibit the perpetrator from seeing the victim or the children

Note that a later Divorce Decree that allocates parental rights and responsibilities, and right to visitation will modify the CPO, if the decree differs from the CPO; this often happens when the CPO directs husband to stay away from his wife and children, but a later divorce decree grants the husband reasonable visitation of his minor children – the CPO is then considered modified.

• Order respondent to allow the victim the use of a motor vehicle

• Apportion household and family personal property between Petitioner and Respondent

• Require any party (perpetrator or victim) to attend counseling

Penalties for Violating a CPO

• When a Respondent fails to follow the Court Order, there can be serious consequences, including jail time – although, absent further violence, the court will normally be reluctant to jail the violator

• The Respondent is also subject to criminal penalties pursuant to O.R.C. 2919.27; This is ordinarily a misdemeanor, but depending on the history of the Respondent, a violation can rise to the level of a 5th degree felony (carries a maximum penalty of 1 year imprisonment)

• The Respondent is also considered in “Civil Contempt of Court” when he violates the conditions set forth in the CPO, and he can be punished outside of the criminal courts

• Civil contempt (violating a valid court order) carries a potential penalty of up to 30 days in jail and $250.00 fine for a first offense. See O.R.C. 2705.05(A)(1); Penalties escalate for subsequent violations, however

Note, though, that in order to pursue the civil remedy of contempt, the victim must file a motion for contempt (“show cause motion”) with the court that issued the CPO and it must be served on the Respondent.

The Court will then hold a hearing, and if the evidence establishes that Respondent violated the conditions of the CPO, the Court can hold the violator in contempt.

It is very important to remember that the Petitioner and other protected people can violate the CPO – the CPO very often prohibits contact between Petitioner and Respondent, and if Petitioner contacts Respondent, this is a violation as well.

Miscellaneous Notes

• If the Petition for a CPO alleges violence to a minor child, the Court is required to report it pursuant to O.R.C. 2151.421 – children’s services will then be involved

• A Petitioner can have the CPO registered in any county in the state, so that enforcement is available with the local authorities; therefore, if the victim moves to another county, she should register the CPO with the local clerk of court so that the police are made aware of the CPO

• If the Respondent wants to obtain a CPO against the Petitioner as well (“cross-CPOs”), the Respondent must file a motion of his own – The Court cannot just grant cross-CPOs based upon testimony that the Petitioner was also an aggressor

• Respondent’s motion must be served on Petitioner at least 48 hours before the scheduled hearing on Petitioner’s motion

• Although the longest that a CPO can last if 5 years, the Petitioner can apply for extensions of the CPO before the CPO expires; the bases upon which the Court can grant an extension is detailed in the statute and an attorney should be consulted as to whether the Petitioner is likely to prevail

• If the Petitioner seeks orders awarding he or she temporary custody of minor children, temporary spousal, or temporary child support, the Court will require certain affidavits to be filed along with the motion for CPO

Request for Temp Spousal Support – must file an “Affidavit of Financial Disclosure”

Request for Temp Custody Order – Must file a “Parenting Proceeding Affidavit”

From our law office in Westerville, Ohio, Jesse R. Mann, Attorney at Law, provides comprehensive family law services including civil protection orders for victims of family violence to clients throughout Central Ohio, in Franklin County, Licking County, Delaware County, Knox County, and the communities of Columbus, Newark, Sunbury, Galena, Delaware, Mt. Vernon, Centerburg, Worthington, New Albany, and Powell Ohio. Ohio Family Law, Westerville Divorce Lawyer, Dissolution Attorney Ohio, domestic violence, lawyer, lawyers, attorney, attorneys, Radnor, Prospect, Lewis Center, Kilbourne, Galena, Mt. Gilead, Cardington, Marengo, Sparta, Ostrander, Shawnee Hills, Morrow County, OH