Tags
appeal, Appeal a protective order, Appeal a Restraining Order, Appeal an order of protection, Arizona, children, custody, Divorce, Family Law, jurisdiction, order of protection, parenting, Protected person, Restraining Order
It is notoriously easy to obtain a protective order in Arizona courts. It is much less common to have minor children included as a protected person in such orders.
If you have been named as a defendant in a protective order proceeding, and the other parent manages to include your children on the order, there are some things you need to know.
1. DO NOT ignore it!
You have the right to obtain a hearing in your case. Use it. The court is statutorily required to give you a hearing within ten days of requesting it. Many Defendants get permanent orders of protection against them because they assumed that there was nothing they could do. That’s a mistake. Even in cases where domestic violence did occur against the other parent, if you can prove that the children were never in danger, it is possible to get the order modified to remove the child as a protected person.
2. There is no opportunity for a direct appeal of a protective order
If you ignore it for too long you will lose your opportunity for a hearing. There is no appeal mechanism in place for this. If you have a hearing and the order is upheld on the merits, there is likewise no appeal mechanism in place. If you ask for a hearing and fail to show up (I’ve seen this), it’s the same result as above. But wait…
3. The family court has jurisdiction to modify a protective order
The Superior Court has jurisdiction over a protective order in an open family law case such as divorce or custody. This was established in Courtney v. Foster (AZ 2014). In that case, the family court judge refused to modify an order of protection that included the children because, he believed, he did not have the authority to do so. The Arizona court of Appeals disagreed, stating that “the superior court has the statutory authority to modify the protective order if the court is satisfied that parenting time would not endanger the child or significantly impair the child’s emotional development.” So although a direct appeal is unavailable, there is still one additional stab at the apple available to a person with a protective order that forbids contact with his or her children.
What does this mean for you if you have a protective order against you? Well if it’s too late to challenge the order, or you challenged it and lost, the only avenue left is to open a case in family court if there isn’t one already. So ironically, if you are still married to the other parent, you would be forced to file for divorce in order to get another shot at seeing your child. If you aren’t married, then opening a custody case would have the same effect.