Can I seek a protective order for domestic abuse?
Iowa Code Chapter 236 provides that a protective order may be entered upon a finding of domestic abuse. To obtain a 236 protective order, the party seeking a protective order must prove by a preponderance of the evidence (i.e., more likely than not) that (1) they have a qualifying relationship with the defendant and (2) the defendant has committed domestic abuse assault.
Who can get an order?
Not everyone can get a protective order. For example, if your neighbor or a co-worker assaults you, you cannot get a civil protective order. To get this kind of protective order, you must have one of the following relationships:
- Family or household members who were living together at the time of the abuse;
- Separated or divorced spouses;
- People who are parents of the same minor child;
- People who have been family or household members living in the same home within the past year but were not living together at the time of the abuse; or
- People who are in or have been in an intimate relationship and had contact with each other within the past year of the abuse.
What qualifies as an assault?
An “assault” does not have to involve someone being hit or having a bruise. Assault may include:
- Any act intended to cause pain or injury or intended to result in physical contact which will be insulting or offensive with the ability to commit that act;
- Any act intended to cause fear of immediate physical contact which will be painful, injurious, insulting, or offensive with the ability to commit that act; or
- Intentionally pointing a firearm toward the other person or displaying a dangerous weapon in a threatening manner toward the other person.
This means that grabbing a child from another person and making contact with their arm in the process can be an assault. Or, texts threating physical harm to the other person can be an assault. But, if the other person is hours away when the threat is made, that probably does not meet the definition of assault.
In addition to the act or threat, the judge will focus whether the person intended to cause pain, injury, offensive contact, or fear of such contact. The fear of the victim alone is not enough. There is no time limit for when an action for a protective order must be filed after abuse occurred, but the farther away in time, the harder it may be to show the need for an order.
Will guns be taken away?
If the judge finds that an assault occurred, and a protective order is entered, the abuser will be ordered to turn in all firearms. If there is an agreement for a protective order, then they may get to keep their firearms.
What if there is agreement to enter the order?
The defendant can agree to a Consent Order. That means that they agree to allow the order to stay in place for a year, but the judge does not enter an order that says an assault occurred. This may allow the defendant to keep their firearms.
What other issues that can be addressed in an order?
As part of the protective order, the judge will order the defendant to stop abusing the protected party. The judge may also address who can live in a house or apartment and address where the children (or pets) will live.
The judge can award temporary custody or visitation with the minor children, set conditions or restrictions on visitation, or order the defendant to pay support for the protected party or the minor children. In making a custody or visitation award, the judge will primarily consider the safety of the protected party and the children. If there are safety concerns for the protected party or the children, the judge can set restrictions on visitation such as time, place, or duration. The judge may also require supervision during visitation or deny visitation entirely.
The protective order will be set for a limited duration that is no longer than one year. After the protective order has been issued, the court may amend or extend the protective order upon request of either party. To have the order extended after the initial order expires, the court must find the defendant continues to pose a threat to either the protected party, somebody living in the protected party’s home, or members of the protected party’s immediate family. A request for the extension must be requested before the order expires, or a new order will have to be sought.
If you need a protective order due to domestic abuse, or if a petition for a protective order has been filed against you, please contact Miller & Evans at (515) 809-9699 for assistance.