Protective Order for Domestic Abuse
The orders granted under Chapter 236 are meant to be protective. As a result, if you were served with an application for a protective order follow the terms of the temporary order carefully. Any allegation that you violated the order can result in your immediate arrest. If you were served with a petition for protective order, stop and read the paperwork carefully. Be sure to stop all contact and follow the letter and spirit of the order.
If the allegations are false or exaggerated, contact an attorney experienced in fighting allegations of domestic violence. The attorneys at McCarthy & Hamrock, P.C. represent the RESPONDENT or the person ACCUSED of domestic violence against criminal charges and civil protective orders.
Once the order is entered, only the judge can change the terms of the order. If the petitioner tries to contact you, do not respond. If the petitioner no longer wants the order, the petitioner must ask the court to change or stop the order. Until you have in writing that the order has been dissolved, do not have contact.
Orders for protection from domestic violence can last for up to one year and be extended for one year only if the petitioner asks for the extension.
Refusing Claims of Domestic Abuse Assault
A party seeking a protective order under chapter 236 must prove by a preponderance of the evidence that the respondent committed “domestic abuse.” Iowa Code § 236.4(1) provides that “the plaintiff must prove the allegation of domestic abuse by a preponderance of the evidence.” Also, Iowa Code § 236.5 provides that relief is available only “[u]pon a finding that the defendant has engaged in domestic abuse”).
In Wilker v. Wilker, 630 N.W.2d 590, 596 (Iowa 2001), the court found the burden of proof is a preponderance of the evidence in these hearings. In Knight v. Knight, 525 N.W.2d 841, 843 (Iowa 1994), the court found “‘[d]omestic abuse’ means committing an assault as defined in Iowa Code section 708.1” where the victim and assailant have a relationship governed by chapter 236. Iowa Code § 236.2(2).
In many of these cases, the Petitioner is unable to provide that the Respondent committed any form of “domestic abuse.” The meaning of “assault” is found within the meaning of section 708.1. A person commits an assault when the person does, without justification, “[a]ny act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.” Iowa Code § 708.1(2)(b).
In this context, “immediate” means “occurring without delay; instant.” Black’s Law Dictionary 751 (7th ed.1999). The ability to execute the act must be apparent to the offender, not the victim. See Bacon v. Bacon, 567 N.W.2d 414, 418 (Iowa 1997). The apparent ability to execute the act means “that his expectations of placing another in fear must be reasonable.” State v. Braggs, 784 N.W.2d 31, 37 (Iowa 2010) (alteration omitted) (citing State v. Jackson, 305 N.W.2d 420, 423 (Iowa 1981)).
The courts in Iowa have considered numerous cases in which the evidence was insufficient. In these cases, the court found insufficient credible evidence to establish an assault occurred and insufficient credible evidence to establish a credible ongoing threat of assault.
- Speicher v. Rajtora, No. 08–0769, 2009 WL 607497, at *1 (Iowa Ct.App. Mar. 11, 2009) (holding threatening telephonic communication where the parties were one to two miles apart was insufficient to establish immediacy and apparent ability to execute the act).
- Kiersch v. Kiersch, No. 12–0289, 2012 WL 4101011, at *1 (Iowa Ct .App. Sept. 19, 2012) (reversing and remanding for dismissal of protective order where threatening messages were sent by text without other evidence of immediacy and apparent ability to execute the threat);
- In re Landhuis, No. 14–1447, 2015 WL 1331854, at *3 (Iowa Ct.App. Mar. 25, 2015) (vacating protective order where the parties were 160 miles, and several hours by car, from each other and there was thus no possibility of immediate physical contact and, by extension, no reasonable fear of immediate physical contact);
- State v. Button, 622 N.W.2d 480, 484 (Iowa 2001) (“Clearly, regarding a threat over the telephone, there is no immediate ability to carry out the threat when the speaker is not even physically present.”).
Are the Parties Domestically Related?
To be eligible for a protective order against domestic violence, the petitioner and respondent must legally be considered to be domestically related. A domestic relation can include:
- Married persons, including juveniles who are married;
- Family or household members living together at the time of the alleged assault;
- Unmarried persons who are cohabitating (co-habitation does not necessarily require a sexual relationship but does require something more that merely living together);
- Separated spouses or persons divorced from each other, including juveniles who are or were married;
- People who have lived together within the past year but were not living together at the time of the assault;
- Juveniles and adult biological parents of the same minor child regardless of whether they have ever lived together;
To be considered domestically related, if the petitioner and respondent have never been married, then the parties must;
- have a child together;
- have lived together at the time of the assault; or
- have lived together within the past year.
If a person under the age of 18 years old is seeking protection from domestic violence, the child must have a parent or guardian file the petition on their behalf.
Restraining Orders in Domestic Violence Cases– Visit the website for the Polk County Attorney’s Office at the Polk County Justice Center at 222 Fifth Avenue in Des Moines, to find out more about why prosecutors do not represent the alleged victim in protective order hearings. Instead, the website for the Polk County Attorney’s Office gives advice to the alleged victims that they can pick up an application for a domestic violence restraining orders from the Clerk of Court in Room 115 of the Polk County Courthouse, at 5th and Mulberry in Des Moines, Iowa. The alleged victim can ask the court for relief from domestic abuse with or without an attorney. The clerk of court office in Des Moines, Iowa, has forms available for the alleged victim to complete.
How do I get a restraining order in Des Moines, IA? – Visit the website for Polk County in Iowa to find frequently asked questions (FAQ) about Restraining Orders including the No Contact Order and the Protective Order. The website gives advice about how to get a Restraining Order. No Contact Orders are issued by the court after a person has been charged with a crime such as domestic abuse assault, harassment, stalking, sexual abuse, and assault. The prosecutor in the case with the Polk County Attorney’s Office will request a “no contact” order at the time of the defendant’s first appearance before a judge. On the other hand, “Protective Orders” are issued by the Civil Court and involve those persons who allege to be a victim of domestic abuse. The person accused of domestic violence can be served with a petition for a protective order even if the person is not ever arrested for the offense alleged. The applications for the Protective Order can be obtained in Room 115 of the Polk County Courthouse, 5th & Mulberry, Des Moines.
Iowa Legal Aid Answers Questions about Protective Orders – Visit the website of the Iowa Legal Aid which helps low-income Iowans find legal solutions. Find information about who can get a civil protective order, the definition of domestic abuse, how to file for the protective order.
Attorneys for Domestic Violence Protective Orders
If you were accused of domestic violence, you might be facing a criminal charge and a civil case for a protective order. Seek out the services of an experienced criminal defense attorney who can help you fight the charges and obtain the best possible result in your case.
Our attorneys can represent you at the return hearing to fight false or exaggerated allegations of domestic violence in Des Moines, Iowa. Call McCarthy & Hamrock, P.C. today to discuss the facts of your case.