Orders for Protection and Harassment Restraining Orders
by: Legal Services State Support
Ninth Edition - September 2014
NO ONE HAS THE RIGHT TO HURT OR THREATEN YOU OR YOUR CHILDREN.
If you are being threatened, hurt, or abused right now, call 9-1-1.
You may be able to get an Order for Protection (OFP) or a Harassment Restraining Order.
Table of Contents
Click here to view the entire booklet.
- make the abuser leave your home
- order the abuser not to have contact with you
- order temporary custody, parenting time or visitation
- order child support or spousal maintenance
- order use of property
Some people talk about “no contact orders” but those are different. They generally mean a judge in a criminal case told the defendant to have “no contact” with the victim.
WHAT IS DOMESTIC ABUSE?
Domestic abuse can be physical harm, creating fear of immediate physical harm, criminal sexual conduct, terroristic threats or interference with an emergency call. Here are examples of each of
these kinds of domestic abuse:
1. Physical harm includes
- shoving or pushing
- punching or slapping
- pulling hair
- throwing things at you
- burning you with hot food or cigarettes
- locking you in a room
2. Creating fear of immediate physical harm (threats) includes
- saying things like "I'll kill you if you leave me," or "If you don't give me the car keys
- I'll hit you harder than last time"
- waving a gun or knife at you
- smashing your furniture
- killing your pets
If the abuser has hurt you in the past and is now using words or actions that cause you to believe the abuser is about to do it again, that is a threat of physical harm.
3. Criminal sexual conduct
This means forced intercourse or forced contact with intimate body parts. For a child under 18 this may include any sexual contact.
4. Terroristic threats include
- bomb threats
- threatening with a fake gun
- threatening to commit any crime of violence
5. Interference with an emergency call
This means stopping or trying to stop you from making
- emergency 911 calls
- emergency calls for medical or ambulance service
- emergency calls to police or fire department
- other emergency calls
Family members or Household members can ask for an OFP. This includes
- people who are married
- people who used to be married
- people who are related by blood, including parents and children
- people who live in the same home together - even if the people are not having a sexual relationship but are just roommates
- people who used to live in the same home together
- people who have a child together
- people who have a pregnancy together
- dating partners in a significant relationship —you do NOT have to live together now or in the past
This information applies to all people regardless of sexual orientation.
You can get an OFP before, during, or after a divorce case involving the abuser. The OFP case is separate from the divorce case.
GETTING AN OFP FOR A MINOR
You can apply for an OFP for a child if you are a
- parent or guardian
- a family or household member
- sometimes other adults can apply
You can apply for an OFP for yourself AND a child if you both have been abused or threatened.
You can apply for just the child if the child was abused or threatened and you were not. A Judge may also want you to call Child Protection if the harm or threats were only to the child and not
If you apply for an OFP based on physical or sexual abuse of a child, you will probably need a lawyer to help you.
Minors, ages 16 or older, can sometimes get an OFP on their own. They should follow the same process as an adult.
OFP AGAINST DATING PARTNERS
If you want to get an OFP against someone you are or were dating, there are things the court will look at such as
- how long the relationship lasted
- the type of relationship
- and how long ago it ended.
You cannot ask for an OFP if you are not related to your abuser and you have
- never been dating partners
- never stayed in the same home together
- never been married to each other
- not had a child or pregnancy together.
If you have a problem with someone like your neighbor, friend, distant relative, or co-worker, you can apply for a Harassment Restraining Order instead of an OFP (go to page 32 for more information).
HOW LONG DOES AN OFP LAST?
An OFP usually lasts for 2 years. If the OFP is violated or more abuse happens, you can get it extended (see page 28). Also, if there have been 2 or more OFPs or Restraining Orders against the abuser or if the abuser has violated the order more than twice, the court can make an order last for up to 50 years. But, if the abuser does not do anything to violate the order for 5 years, there's a chance he could ask the court to shorten or vacate the order.
HOW DO I APPLY FOR AN OFP?
You do not need a lawyer or advocate. You can apply for an OFP yourself. It does not cost anything. You need to decide what works best for you. Below are some ways to apply.
If you want to apply for an OFP by yourself, you apply at the county courthouse. Some counties have special offices to help you. Some have the court clerk fill out the forms. Some hand you the forms to fill out.
You also can get the forms on the internet so you can fill them out before going to the courthouse. The forms are available at www.mncourts.gov/forms. Look for the forms called Protective Orders. Read the instructions carefully. You may need to fill out more than one form. Once you get the form(s) you will need to
1. fill out the form(s)
2. file the form(s) with the court
3. give information so the forms can be served, and then,
4. attend the court hearing if there is one.
These steps are explained in this booklet.
WITH AN ADVOCATE
You may want a women's advocate for support. She can give emotional support. She may help you fill out the forms and take pictures of your injuries, if needed. She is trained to help you and she knows the court process, but she cannot give you legal advice. She cannot speak at the hearing. Information about how to find an advocate is at the end of this booklet on page 40. If you work with a domestic abuse advocate, the advocate can't be forced to tell that information in court, unless you agree or the court orders the advocate to give that information.
WITH A LAWYER
You may want a lawyer for legal advice or to represent you in court. You do not have to have one but you can if you want. You should think seriously about getting a lawyer if your situation involves
- harm to a child
- subpoenas for witnesses or written evidence
- expert witnesses such as doctors or police
- concerns about your immigration status
- the other side has a lawyer.
You can find the phone number for your local legal aid office starting on page 42.
The form you need to get your OFP started is the Petitioner's Affidavit and Petition for Order of Protection. It can be found at the end of this booklet starting on page 46.
- The Affidavit is a statement of facts. You give basic information about yourself and your children and you describe the domestic abuse.
- The Petition tells the court what you want the court to do. You list the things you want the judge to order in the OFP.
You do not have to put your address in the affidavit. You can put "safe place" instead.
DESCRIBE THE ABUSE - GIVE DETAILS
The judge has to decide if your situation meets the legal definition of abuse. You have to paint a picture in words. Pretend you are describing a movie of what happened and be as specific as you can. Do not use words like "he abused me" or "he became physical." Instead, tell in as much detail as possible exactly what happened.
- Date(s) it happened
- Place(s) it happened
- What part(s) of your body was touched
- What part(s) of your body he used
- Exact words of threat
- Body language
We were arguing. Respondent screamedat me and I was afraid.
Last Thursday night, November 15, 2006, we had been talking about our child. Respondent screamed that I had better do exactly what he said or I'd be sorry. He was standing inches away from me and I was backed into the wall of the kitchen. I could feel his spit on my face as he screamed. I was afraid because the last time, about a month ago, when he had said I had better do something or I'd be sorry, I did not do what he wanted and he grabbed me and shook me really hard. So this time I was really afraid he would do it again. I ducked under his arms and ran out of the house.
First the judge must decide that the abuse or threats did happen and you can get the Order For Protection (OFP). Only after that can the judge make decisions about other things.
The Judge can
- order the abuser not to commit acts of domestic abuse (as defined on page 4)
- make the abuser leave a home you have together, including a reasonable area around your home, and stay out of any future homes
- order no contact with you, whether in person, with or through another person(s), by telephone, or letter, e-mail or text messaging or by any other means
- decide temporary custody
- decide parenting time/visitation, including limiting or restricting it
- award child support
- award spousal maintenance (alimony)
- keep the abuser away from your work place
- decide who gets to use property you share, such as a car
- prevent property from being sold, damaged or used for a loan
- order the abuser into counseling or treatment
- order restitution (pay you back) for your expenses from the abuse, such as costs of changing locks, unlisted telephone numbers, and medical costs
- prevent any changes in insurance coverage
- order other things necessary to protect you from abuse
- order the abuser to give up keys to homes and cars
- order the abuser to give up weapons to the police for safekeeping
- order the sheriff to go with you to the house to remove the abuser or help you get your property.
Think carefully about what you want to ask for in your OFP. Read the sections about custody and parenting time carefully before deciding if you want to ask for custody or parenting time.
IF you are not married the law says the mother has sole legal and physical custody of the child. The father must legally establish that he is the father before he can get custody or parenting time. Signing the birth certificate does not give the father any rights to custody or parenting time. He still must go to court.
If you and the father sign a paper called a Recognition of Parentage [ROP], it is the same as a court order saying he is the legal father. But the father must still go to court to ask for legal rights of custody or parenting time.
If there is an ROP but no court order about custody or parenting time, you do not need to say anything about custody or visitation in the OFP application. You may want to say the abuser is the legal father because of an ROP , but does not have court ordered custody or parenting time.
If there is no ROP or court order saying the abuser is the legal father and giving him any custody or parenting time, he cannot ask for custody in the OFP case. Tell the judge you object if the abuser tries to do this in your case. If the judge gives the abuser custody anyway, contact a lawyer. The court can give some form of temporary parenting time to the abuser, if he asks for it, and as long as there is no evidence of harm to the child.
If you have worries about the child being with the abusive father, you should say so. Make it clear that even if he asks for parenting time, you don't think it is safe for the child and list why. Of course, you may still allow the abuser to visit your child if you feel its best for the child and safe for you both.
Custody and parenting time are decided differently in an OFP than in other custody cases. The court may award temporary custody or temporary parenting time while giving primary consideration to your safety and the safety of the children. The court may also consider the best interests of the children. The court looks at lots of different things when deciding the best interest of the children.
Some examples are
- the children's wishes
- their relationship with each parent
- how well the children are doing where they live now
- how long the children have lived where they are now
- the child's cultural background
- you and the abuser's parenting abilities
- which parent is the primary caretaker
- the mental and physical health of each parent and the children.
If the court decides your safety or the safety of the children is at risk if there is unsupervised or unrestricted parenting time for the abuser, it is required to
- set specific rules about the time, place and length of the visits and who supervises them
deny any parenting time at all.
1. File the application
After the forms are filled out, file them with the court. In many courts, the court clerk takes the form from you and presents the form to a judge to decide about an ex parte order (see #2 below).
Who decides if I get the OFP?
Only a judge can decide if you get the Ex Parte OFP or the OFP itself.
What if the court clerk or advocate tells me I cannot apply for an OFP?
If a court clerk tells you that you cannot apply
- Ask to see the judge and explain why you want to apply.
If an advocate or a lawyer says you cannot apply
- You probably still can. They are likely only telling you their opinion of your success. You may want to ask why he or she thinks you cannot apply because that information may help you fix a problem in your application.
2. Ask for an Ex Parte OFP
If your application convinces the judge that you are in immediate danger, the judge should give you an Ex Parte OFP. This is an order you get before the abuser has a chance to tell his side of the story.
The order only lasts for a set time period or until a hearing is set. Hearings are sometimes set by the court or only happen if you or the abuser asks for one. You can still get an OFP if the judge denies the Ex Parte OFP, but only after a hearing.
3. Decide if you should ask for a hearing
Some cases do have a hearing. You or the abuser can ask for a hearing.
You must ask for a hearing if you want
- custody of your children
- restrictions on the abuser's contact with the children
- the abuser to have no contact with you
- financial support
- personal property
- payment of your costs related to the abuse
- the abuser ordered into counseling or treatment
- the abuser to give up his guns.
You do not need to ask for a hearing if all you want is
- an order preventing abuse
- the abuser to move out and stay away from your home
- the abuser to stay away from where you work.
4. Arrange for "service"
The papers you fill out for your OFP must be formally given to the abuser. This is called service of process. This means that someone other than you personally hands the papers to the abuser. The sheriff usually serves the papers but other officers such as a probation officer or police officer may do it. Even other adults― other than you ―may be allowed to serve. If you use the sheriff or police, there is no cost to you. But you may need to take the papers to the sheriff yourself. The sheriff is usually located at or near the courthouse. Give the sheriff all the information you can about where to find the abuser. Call the sheriff 2 days before the hearing date to find out whether the abuser has been served. In some counties, the court clerk will take care of getting the papers to the sheriff for you.
What if I don't know where the abuser is?
Do not stop applying if the clerk says you need to know where the abuser is. You can give a last known address, the place where he might be staying or a work address. If you do not know where the abuser is and cannot find out, ask to have the papers served in another way.
If the sheriff has tried to serve the abuser and he is hiding to avoid being served, then you may be allowed to "serve" him by publishing a notice in the paper.
You have to file an affidavit with the court that says
1. law enforcement (sheriff or police) tried to serve but couldn't because the abuser is hiding to avoid being served AND
2. you have mailed a copy of the petition to his last known address OR you don't know any address for him. You must have the sheriff try to serve even if you don't think it will be successful.
Whathappens if the papers are not served on the abuser before the court hearing?
You still have to go to court and the court will set a new hearing date. If the sheriff cannot find the abuser because he is hiding to avoid being served, the abuser can be served by publication as described above.
You will have to go to another hearing to get your final OFP. The court should issue a new Ex Parte OFP to last until the next hearing.
If things are not done the right way, in the right period of time, you will not get your OFP. If you are having problems with service, you should think about talking to a lawyer. You may need more legal help than you can do on your own.
5. Find out if a hearing gets scheduled
If you get an Ex Parte OFP, the abuser can ask for a hearing even if you do not. The abuser has 5 business days to ask for a hearing after he gets the papers. If you do not get a notice in the mail, keep calling the court to see if the abuser asked for a hearing. If you do not appear at the court hearing, the abuser can dismiss your OFP. You will not have protection.
6. Go to the court hearing
- If you asked for a hearing, it must be held within 1 week from when the judge signs the Ex Parte OFP.
- If the judge did not sign an Ex Parte OFP, the hearing must happen within 2 weeks from when the judge signs the Order for Hearing.
- If you did not request a hearing but the abuser did, the hearing must be scheduled between 8 and 10 days from when the abuser asks for it.
If you do not go to the hearing, the court will not give you an OFP. Even if you got an Ex Parte OFP, it will not be any good if you do not go to the hearing. You may have a lawyer with you.
TIPS FOR THE COURT HEARING
Before the hearing
1. Make a list of written materials or other things you want to give to the judge and bring those things with you. You cannot bring things later or say that you have it at home and could bring it later.
2. Arrange for your witnesses to come. You have to be ready with all of your witnesses for the hearing. If a witness does not want to come, you can get a subpoena (see page 18).
3. Practice what you will say.
4. Read your affidavit. It may help to talk about the affidavit with your advocate or someone else you are comfortable with before the hearing.
5. Make a list of what you want to say.
At the hearing
1. Arrive early. Check with the court administrator for the location of the hearing.
2. Pay attention. The judge or clerk will announce your case before it starts. Be ready to start when you are called.
3. Do not bring children to the hearing. Find someone to look after your children while you are at the hearing. If you do bring them, the judge may not permit them in the courtroom.
4. Dress in neat and clean clothes. This shows respect for the court.
5. Be calm and polite with everyone in the courthouse, even the abuser.
6. Be serious at all times in the courthouse.
7. Don't say anything in the bathrooms or hallways that you do not want the abuser, or the abuser's attorney or relatives to overhear.
8. Treat the judge with respect. Say "yes sir" or "yes ma'am" to the judge.
9. Speak clearly. Use words; don't shake your head for "yes" or "no." Do not chew gum or put your hands in front of your mouth.
10. Give details.
- argue with the judge
- interrupt the judge
- argue with the other side
interrupt the other side
You need to bring evidence to court to help prove your story. The best evidence is to have people there to testify like doctors, police or witnesses. The second best thing is to have certified copies of documents like police reports or medical records. You need to ask the police or your doctor for these. At the very least you should bring to court
- copies of documents like police reports and medical records
- things the abuser damaged like a broken phone or torn clothing
- threatening letters or notes
- receipts showing costs you had because of the abuse like paying for a new lock, repairing the wall, buying a new phone or doctor bills.
Witnesses can be anyone who saw the abuse, your injuries or your fear. Witnesses can also be anyone who saw you run away from the abuse like a relative where you stayed. Police and sheriff can be witnesses. So can doctors, nurses or record keepers at your hospital or clinic. It is much better to have the police who made the report come and describe what happened than to only have the report. Police officers are usually very helpful and cooperative. It may be harder to get doctors or nurses to take time to come but if your injuries or your statements to them are important, then you should arrange for them to come.
If a witness will not come to the hearing voluntarily, use a form called a subpoena to make them come. Get the subpoena from the court clerk before your hearing. There is no cost for the subpoena form. But there is a cost for the witness's time and expenses to come to the hearing.
Fill out the subpoena and take it to the sheriff for service. You must staple to it a check for the witness's time and expenses. The amount of the check is $20 plus 28¢ per mile for a round trip from the witness's home to the courthouse. You may be able to get this money back.
Doctors, nurses and other professionals sometimes charge hourly fees to come to court. Record keepers normally do not charge hourly fees. You can ask the court to pay their fees if you cannot afford them.
If you cannot afford the fees, ask the court for an In Forma Pauperis form to fill out so you do not have to pay them.
If you need documents for the court hearing and do not have a copy, use a subpoena to get them. On the subpoena there is a place to list the documents you want the witness to bring to the court hearing.
Be careful using your medical records in the court hearing. If there is anything bad about you like suicide attempts or drug use in any of the records, it can be used against you.
Every judge runs his or her courtroom differently. If you work with an advocate, ask what she knows about your particular judge's or referee's OFP hearings.
Many judges begin the hearing by giving the abuser 3 choices. They are
- admit the abuse
- deny the abuse
- agree to an OFP but do not admit or deny the abuse.
If the abuser picks #1, you get the OFP. If the abuser picks #2, the judge holds a hearing. Some judges hold the hearing right then. Some judges schedule the hearing later that day or a different day. You will not know if the hearing happens right away so you must be ready.
If the abuser wants #3, you should be asked if you agree. You do not have to agree. Some reasons you might agree are
- to avoid losing at the hearing
- to avoid the emotional stress of having to go through the hearing
- to avoid paying attorney's fees if you have a lawyer.
You might not agree becausethere will not be a written record the abuse happened. This kind of record could help you if
- you need to get your OFP extended for longer than a year
- the abuser later fights custody or visitation arrangements
- the abuser later violates the OFP
- you are an immigrant and need to apply for lawful residency status or to suspend deportation proceedings (see page 29).
Sometimes, judges ask the abuser if he did the things you say in your petition. If the abuser admits to anything meeting the definition of domestic abuse, you may get the OFP. If the abuser denies it, there will be a hearing.
The judge may ask you if what you said in the affidavit is true. The judge may ask you if you still want the court to order the things you asked for in your petition.
You can ask the court to delay the hearing a few days so you can also find a lawyer. This is called a continuance.But the court might not give a continuance. It is important to be prepared ― assume the hearing will happen that day.
Do not agree to a mutual order
A mutual order means that both parties (you and him) will have protection orders against each other. This should only happen if both of you have applied for an OFP against each other through the normal process. He can ask for a mutual order, or the judge can suggest one. DO NOT AGREE TO A MUTUAL ORDER. If you do not agree, it will have to go through court process. It is better to let him try to prove his case in court.
A mutual order can make it easier for the abuser to call the police and have you arrested for abuse. Mutual orders can create immigration problems for temporarily documented people if theorder says you abused the other party. Mutual orders make it harder to keep custody of your children.
At the hearing both sides present evidence. Evidence is what you and other people say and what written documents you have. Both sides give the judge the written documents ― like copies of letters, receipts or damaged property. Witnesses tell the judge what they saw. Evidence helps the judge decide what happened.
You present your case first. You tell your story after taking an oath to tell the truth.
First talk about the abuse, harm or fear. Then talk about the other things such as child custody, child support or restitution. Restitution means that he would pay money for things he damaged, like paying to fix a door he kicked in. It helps to look at the judge and not the abuser while you are talking. Give the court any written documents to support what you say.
After you are done, your witnesses testify and present documents to support your case. Sometimes there are problems with what witnesses say because they do not have firsthand knowledge. For example, they did not see the abuser hit you. Sometimes there are problems with evidence such as police reports or doctor reports if the police officer or the doctor are not there. Talk to a lawyer about these problems before the hearing if you can.
When you and your witnesses are done speaking, the abuser or his attorney can ask you, or your witnesses, questions. Answer the questions truthfully. Stay calm. Stay focused. Look at the judge. Do not look at the abuser or his attorney. If you do not understand the question, ask the judge to ask the question again or in another way.
The abuser presents his case. He tells his story after taking an oath to tell the truth.
The abuser presents his written documents and witnesses. You can ask questions of the abuser or his witnesses. Do not argue with him. Just ask questions. The judge will decide if the abuser is truthful.
Use a checklist to help prepare your story. Describe the most recent physical abuse.
- Give the date and approximate time.
- Describe the assault and threatening behavior. Do not focus on the events leading up to the assault.
- Use specific descriptions. Do notsay "He beat me up." Say "He hit me at least 10 times in the face and left shoulder. He hit me with his right fist and he wore a ring which cut my upper lip on the left side."
- If you know the number of times the abuser kicked, slapped, or did whatever he did to you, make sure you say that.
- If you know how many hours or minutes the assault lasted, make sure you say that.
If the children were hurt or threatened in any way explain how. Remember, if there is harm to a child it might start a child protection investigation.
Describe the results of the assault by answering the following questions:
■ What cuts, bruises, sprains, headaches, or internal injuries did you suffer?
■ Were you treated for your injuries?
- By whom?
- What were the injuries?
- What treatment was provided?
- Were any pictures taken?
- Did anyone see the treatment?
■ Did the children know about the assault?
- Did they see or hear anything? Even if they were in another room, it is likely that they heard it.
- How did the children react? Examples include crying, screaming, running, hiding, calling neighbors or police, trying to stop the abuse.
- Were there problems later? Examples include fear, anxiety, bedwetting, school problems, aggressive behavior, changes in sleep or eating patterns
■ Were the police called?
- How did they respond? Did they make an arrest?
- Did you go to a shelter or safe home or leave the home?
- Are criminal charges pending?
- Did you lose a job because of the assault?
- Did you lose any property because of the assault?
Go back over any other assaults. Talk about the most serious assaults first. Use the lists above to answer the same questions about each one.
If there was no assault or if it was months or years ago and the abuser still caused you fear of immediate harm, you must prove you have fear of immediate harm right now.
You can do this by answering the following questions:
- What specific actions cause you to fear harm? What did the abuser say or do?
- When did they happen? Give the date and time.
- Describe how the abuser appeared. For example, a flushed face, he was shouting, an angry tone of voice.
- What harm were you afraid of and why?
- If the abuser's behavior now is similar to past behavior when he became violent, describe how. It is important for the judge to hear why his past behavior makes you afraid now.
After proving the abuse, you also need to tell the court the reasons for the other things you asked for, such as
- why you should have custody
- why you need child support
- why you need restrictions on parenting time (visits)
- why you need use of property and why you need the car.
Make a quick summary at the end
I was hit/pushed/slapped by him on or about _________ [date]
I was threatened with being hurt by him on or about ___________ [date]
Before that about _____ (number) times in the past year he also did things that hurt or threatened me. I am asking for an order to protect me
I am also asking for
- custody of our children
- for him to have visitation on ______days at_______time
- for him to get his things that I will have boxed, if he comes with a police officer
- for him to pay child support in the amount of _____
- and for him to stay away from my home, work and the children's school and daycare
I WORK DURING THE DAY. HOW AM I GOING TO GO TO COURT?
Your employer cannot punish you for taking time off from work to get an Order for Protection or to go to the court hearing. Give your boss 48 hours notice if you can. Your employer must keep the information private unless you give permission to share it.
If your abuser might come to your workplace, give a copy of the OFP to your boss. Let others at work such as the receptionist or security guards know about the OFP.
Right after the hearing is over, the judge will say if you need to wait to get the order right then or if the judge needs to think about what to do and mail the order later. Usually you wait for the order.
When you get the order read it carefully. If there are any questions or mistakes, ask to speak to the judge's clerk to find out how to fix the order.
If you did not get your OFP or if you want to change what is in the OFP, there are 2 things you can do.
1. Appeal. An appeal is when you ask another court to review the decision. If a referee made the decision, what happens next depends on the county. Some counties let you appeal to a judge then to a higher court called the Court of Appeals. The court administrator has the papers to start the appeal to the judge.
Some counties require you to go straight to the Court of Appeals. A lawyer is usually needed for the appeal. See a lawyer right away. There are special time limits that apply.
2. Apply for a change to the OFP. This is called an amendment or modification. The court administrator has the forms you need.
Call the police. Police must make an arrest if they believe the abuser violated an OFP. They do not have to see the violation themselves. Tell the police you have an OFP. Ask them to make the arrest.
Violating an OFP is a misdemeanor crime. If found guilty, the prosecutor may ask you what you want them to do, including the amount of jail time, fines, and probation conditions such as having no contact with you. Maximum penalties are 90 days in jail and a $1,000 fine. But the penalties the judge orders are usually much lower. A person convicted of violating an OFP must be sentenced to at least 3 days in jail and ordered to go to counseling or a program to change their abusive behavior.
A 2nd conviction for violating an OFP is a gross misdemeanor. Maximum penalties are 1 year imprisonment and a $3,000 fine. Again, the penalties ordered are usually much lower. A person convicted of a 2nd violation must serve at least 10 days in jail.
If the abuser uses a weapon when violating the OFP it is a felony. It is also a felony if there are 3 or more violations in ten years. The maximum punishment for a felony is 5 years in prison and a $10,000 fine.
Sometimes the abuser's actions in violating the OFP constitute more serious crimes and other criminal charges can be filed too.
You can also ask the court to find the abuser in contempt of the court in the OFP case. The court administrator has forms to do this.
DOES THE OFP END IF I LET THE ABUSER INTO MY HOME?
No. But for your safety it is better not to. If the abuser comes in the house because you say he can, hestill violates the OFP. If the abuser is abusive after he gets in, tell him to leave. Call the police.
HOW DO I CHANGE MY OFP?
You can ask the court to change the OFP. For example, if you want to allow the abuser back in your home or change the location of his visitation but still keep the other protections in place. Ask the court administrator for forms to change your OFP.
WHAT IF I MOVE FROM THE ADDRESS LISTED ON MY OFP?
The OFP is good even if you move. Think about giving the court and the local law enforcement agency your new address. But if you do, the abuser might be able to get your new address.
WHAT IF I WORK OR LIVE IN A STATE OTHER THAN MINNESOTA?
Get a certifiedcopy of your final OFP from the court that issued it. You need to ask for a certified copy from the court. Take the certified copy to the court clerk for the county in which you live or work. Ask to file or register it as a foreign judgment. The law requires other states to recognize and enforce your OFP once you complete this procedure.
WHAT IF I HAVE A PROTECTION ORDER FROM A TRIBAL COURT?
A protection order from a tribal court must be enforced if the order is basically the same as an order issued by Minnesota courts. Take a certified copy of the tribal court order to the courthouse and ask that it be filed. There is no cost. You can go to the county where you live, the abuser lives or the county where abuse happened. If you and the abuser are divorced or went to court for custody in another county, you can go to the courthouse in that county.
Give a copy of the protection order to the local police or sheriff's department. If the abuser violates the order, they will know to arrest him.
WHAT SHOULD I DO WITH MY OFP?
Make copies of both your Ex Parte OFP and your final OFP and keep a copy with you at all times. Keep an extra copy in your purse, glove compartment, at work, and anywhere else it may be needed. Police are more likely to arrest the abuser for violating your OFP if you have a copy of your OFP with you. Consider giving copies of your OFP to your landlord, supervisor at work, your day care provider, and your children's teachers at school.
MY ABUSER PROMISES THAT HE HAS CHANGED AND I SHOULD DISMISS THE OFP. SHOULD I?
The decision is yours. You need to think carefully how the abuser has actually shown he has really changed. Has he completed a domestic abuse class or treatment? Or is this promise only words? In the past, has he promised never to hurt or threaten you yet broken that promise? Many times abusers say they are sorry, but soon the abuse starts again. You have other choices than dismissing the order. For example you could modify the order to allow the 2 of you to participate in counseling and give it more time.
MY OFP WILL EXPIRE SOON. CAN I GET IT RENEWED?
You can get your OFP renewed if the abuser violated the order, if he has harassed you, or if you are still afraid of him. You can also get your OFP renewed if the abuser has been in prison and is about to get out. You do not have to prove that there are new acts of domestic abuse. It does not matter if your OFP has already expired. It also does not matter if the abuser agreed to the order the first time.
CAN I TAKE OTHER LEGAL ACTIONS AGAINST THE ABUSER?
You can sue the abuser for money if you have injuries, including emotional distress. There may be other legal possibilities as well. See a lawyer about possible lawsuits as soon as possible! There are time limits that apply.
CAN THE ABUSER KEEP HIS GUNS?
When there is an OFP, federal law says the abuser cannot have any firearms or ammunition. But this only applies if there was a court hearing before you got the OFP. The court can order the abuser to turn over all firearms and ammunition to law enforcement. You can ask the court while you are there for this order after you get an OFP.
In Minnesota, if the abuser is convicted of domestic abuseand used a firearm during the assault the court can stop the abuser from possessing any firearm for 3 years or for the rest of his life. This includes hunting rifles.
You can apply for an OFP. No one has the right to hurt or threaten you. There are many immigration laws that help protect non-citizen, abused victims and their children or parents. You should talk to an immigration lawyer immediately.
Who does special immigration law protect?
You may be able to petition on your own for legal immigration status or to suspend deportation proceedings if
- You have been the victim of domestic violence, sexual assault, rape or many other crimes regardless of whether you or your abuser have legal status. You do not have to be married to the abuser, or
- You are the abused spouse of a U.S. Citizen (USC) or the abused spouse of a Lawful Permanent Resident (LPR) or
- Your children are being abused, even if you aren't being abused. It does not matter if they are not your USC or LPR spouse's children or
- You are the child or step-child of a USC or LPR. Abused children may file on their own.
- You were abused by a U.S. Citizen or Lawful Permanent Resident (LPR), while you thought you were legally married to that person, or
- You are the abused parent of an adult son or daughter who is a U.S. Citizen.
What do I have to prove to get special immigration law protection?
1. You lived with the abuser in the U.S. or on a U.S. military base.
2. You were physically or emotionally abused during the marriage.
3. You are a person of good moral character.
4. You married the abuser in good faith and not just so you could get your immigration papers.
What type of immigration law protection can I get?
- If the abuser is a U.S. Citizen or a permanent resident, you can apply for Lawful Permanent Residence (LPR).
- If the abuser is a Lawful Permanent Resident (LPR), you may be able to apply for Lawful Permanent Residence (LPR.)
- If the abuser is a Lawful Permanent Resident (LPR) who never filed for you before, you can apply for deferred action status and a work permit. Deferred Action Status means that the government will not try and remove you from the U.S. You will eventually be able to apply for Lawful Permanent Residence (LPR).
- If you were not married to the abuser or if the abuser has no immigration status or a status other than a USC or LPR, you may be eligible for U non-immigrant status.
You do not have to stay married to an abuser to get special immigration protection.You may still qualify if the abuser died, lost his immigration status, or divorced you in the last 2 years. If you have a criminal record, immigration violations, a communicable disease, or abuse drugs, it is very important to contact a lawyer before filing.
What if my abuser was not a U.S. Citizen or Lawful Permanent Resident (LPR)?
You may be able to get a different type of immigration protection. Victims of abuse may qualify for a special immigration visa if they can prove they were the victim of a violent crime, and that they cooperated in the investigation or prosecution of that crime. The abuser does not have to be a U.S. Citizen or a lawful Permanent Resident (LPR) for you to qualify. If you get a special immigration visa, you can eventually apply for Lawful Permanent Residence (LPR).
Tell your worker you are a victim of domestic violence. There are special programs and different requirements if you are a victim of domestic violence. Ask for a modified employment plan. You and the county will develop your plan with the help of a battered woman's advocate or someone trained in domestic violence.
If you get Minnesota Family Investment Program (MFIP) or the Diversionary Work Program (DWP) benefits and have an Employment Plan (EP) you may be able to get a modified EP with safety activities.
If you are required to comply with Child Support you may ask for "good cause" exemptions from cooperating because you are afraid of him knowing anything. Problems? Talk to legal aid or your worker.
Your plan can include activities focused on
- protecting you and your family
- helping your family overcome the effects of the abuse
- reducing the number of hours you are expected to do regular work activities.
There is a 60-month time limit for getting public assistance. If you are a victim of domestic abuse you may be excused from this time limit. To be excused you must give the county proof of the abuse. Proof could be
- your sworn statement and one other form of proof, such as medical records, an OFP or
- a sworn statement from someone else who knows about the abuse.
You can legally break your lease if you have been a victim of domestic violence, sexual assault, or stalking, and you do 2 things
1. Give the landlord
- A copy of an Order for Protection or a Harassment Restraining Order and
- A signed and dated letter stating
that you fear imminent abuse from the person named in the order
that you need to end the tenancy
the date you will leave and
what you want the landlord to do with your stuff.
A sample letter is at the end of this booklet on page 47.
2. Pay the rent for the month you move out.
You will also lose your security deposit. The landlord keepsit in return for lettingyou break the lease.
If you don’t have (or don’t want to get) an Order for Protection or Harassment Restraining Order,you have the right to present a document from any one of the following that showsyou have been a victim of domestic violence, sexual assault, or stalking
· a court
· law enforcement
· a licensed health care professional
· a domestic abuse advocate, or
· a sexual assault counselor.
A sample documentis at the end of this booklet on page 48.
If you have questions, contact a legal services office, a domestic abuse advocate, or a sexual assault counselor. For more information, see our fact sheet H-23 Victims of Domestic Violence, Stalking, or Criminal Conduct: Your Rights in Breaking Your Lease.
WHAT IS A HARASSMENT RESTRAINING ORDER?
A Harassment Restraining Order is a court order. It provides protection from harassment or stops another person from bothering you. It is not a criminal proceeding. It takes place in civil court.
WHAT IS HARASSMENT?
Harassment is when someone does or says things that threaten you. Harassment also includes
- repeatedly telephoning a person
- repeatedly following a person
- slashing car tires
- sending letters or e-mail
Anyone can get a harassment restraining order. You do not need to have a relationship with the harasser like you do for an OFP. A parent, guardian or stepparent can get a harassment order for a child.
For example, if your ex-boyfriend's new girlfriend threatens to "get you," you can apply for a Harassment Restraining Order against her. Or, if you have an OFP against your ex-boyfriend and he keeps calling and threatening your parents, they could ask for a Harassment Restraining Order against him.
If someone is harassing you, sometimes it helps if you first tell them to stop or write them a letter telling them to stop. Keep a copy of any letter you send and a written record of any times you verbally told the harasser to stop.
WHAT IS THE DIFFERENCE BETWEEN HAVING A HARASSMENT RESTRAINING ORDER AND AN OFP?
An OFP provides better protection. Police and the courts take an OFP more seriously. If you qualify for both, usually it is best to apply for an OFP.
Some behaviors do not meet the legal definition of domestic abuse, but do meet the definition of harassment. For example, repeated telephone calls by your ex boyfriend threatening to take custody of the children away from you may be harassment, but not always domestic abuse. It may depend on if you were afraid of being harmed or just really annoyed that the calls don't stop.
For example, if the threatening calls are being made repeatedly to you by your ex's new girlfriend and she calls you bad names and swears at you, that is harassment because you and the girlfriend are not in a kind of relationship that qualifies for an OFP.
WHAT CAN THE HARASSMENT RESTRAINING ORDER DO TO PROTECT ME?
The court can order the harasser to leave you alone and have no further contact with you. This includes stopping the telephone calls, letters and e-mails. For example, the order can limit the number of times in a day or week or month you can be contacted. The order can state a specific number of feet the harasser must stay away from you. Or, the order may just say "stop calling."
Ask for everything you want the court to order in your petition for a Harassment Restraining Order or you may not get what you want.
Apply at the county courthouse where the harassment occurred, or where either party lives. See the district court clerk. You do not need a lawyer, but you can have a lawyer if you want to hire one.
There is a filing fee for applying for a harassment order. But there is no fee
- If you ask thecourt to allow the case to be filed "In Forma Pauperis" because you cannot pay the fees and costs. You have to fill out an IFP affidavit. The court clerk should help you with the forms.
- If the kind of harassment that happened would also be a crime under the laws that protect you from the following
- stalking, following, pursuing
- an illegal act with the purpose of injuring you or destroying your property
- trespassing - being at your place without your permission
- repeated telephone calls
- sexual assault
- sexual contact with a minor
- and others.
These things are all crimes. Ask the court clerk for the list of crimes that mean there should be no filing fee.
To get a Harassment Restraining Order you need to
- fill out the necessary forms
- file the forms and
- attend the court hearing.
Filling out the forms
There are 2 forms you need to fill out for a Harassment Restraining Order. They are
- Petitioner's Affidavit and Petition for Harassment Restraining Order
- Law Enforcement Information Sheet.
These forms can be found online at www.mncourts.gov/forms. The Affidavit and Petition for a Harassment Restraining Order can be found in this booklet starting on page 53.
In the affidavit, give basic information about yourself and the harasser. Describe the harassment and list the things you want in your restraining order.
When describing the harassment give details. See page 9 for more information. Listing dates and times is very helpful when applying for a harassment order.
You do not have to put your address in the affidavit. You may write "safe place" instead.
Ex Parte Restraining Order
You may ask for an ex parte restraining order to protect you until the court hearing. The order is good until the court hearing.
Getting the papers served
The papers must be handed to the harasser. This is called service. The sheriff usually serves the papers. You will need to take the forms to the sheriff. The sheriff's office is usually at the courthouse or nearby. Give the sheriff all the information you can about where to find the harasser. The sheriff cannot charge you a fee.
If you do not know where the harasser is, tell the clerk you want to use service by publication instead of service by the sheriff. Service by publication puts a notice in a newspaper.
Call the sheriff a day or 2 before the hearing date to find out if the harasser was served.
You have the right to ask for a hearing about your petition. If you don't, the harasser has 45 days to ask for a hearing. If the harasser asks for a hearing the court will notify you by mail.
WHAT HAPPENS IF THE PAPERS ARE NOT SERVED BEFORE THE COURT HEARING?
If the sheriff cannot find the harasser, the harasser can be served by publishing the notice in a newspaper and mailing the papers to the harasser'slast known address. You still need to go to the original hearing where the court will schedule a new hearing. You then must go to that hearing to get your final order. The court may issue a new Ex Parte Harassment Restraining Order to last until the new hearing.
Call the police. Police must arrestthe harasser if there is probable cause he violated the harassment restraining order. The police do not have to see the violation themselves. Tell them you have a restraining order. Ask the police to make the arrest.
Violating a Harassment Restraining Order is a misdemeanor crime. Penalties include jail time and fines. If the harasser is found guilty, you may tell the prosecutor what you want them to do, including amount of jail time, fines, and probation conditions, such as having no contact with you. Maximum penalties are 90 days in jail and a $700 fine. The penalties usually are much lower. Penalties for violations increase for the number of violations, which can include violations when the harasser was a juvenile.
You may also ask to have the court hold the harasser in contempt of court in the harassment case. The court administrator has forms to do this.
WHAT SHOULD I DO WITH MY HARASSMENT RESTRAINING ORDER?
Make copies of both your Ex Parte Harassment Restraining Order and your final order. Keep a copy with you all the time. Keep an extra copy in your purse, glove compartment, at work and anywhere else you may need it. Law enforcement is more likely to arrest if you have a copy of your order with you. Consider giving copies of your Harassment Order to your landlord, supervisor at work, your day care provider, and your children's teachers at school.
HAS A CRIME BEEN COMMITTED?
Anytime you are physically or sexually assaulted, a crime has been committed. It is also a crime for the abuser to violate your OFP or Harassment Restraining Order or to threaten you.
Call 9-1-1 when the assault happens. Usually the police file reports for 9-1-1 calls. But they do not always file a report every time they are called. If you call the police, ask them to file a report. Ask for a copy. Anytime a crime is committed you can ask the police to file a police report. If you did not call the police at the time of the assault, contact the police station later and ask them to file a report then.
Never assume an abuser will be charged with a crime just because the police were called, because the abuser was arrested, or because the police filed a report. If you want the prosecutor to charge the abuser with a crime, call the prosecutor and tell him/her. You may want to add more detail to the police report. Let the prosecutor know you want the abuser prosecuted.
It helps to bring along an advocate or support person when dealing with police and prosecutors. Filing police reports and asking for criminal prosecution is difficult and stressful. It is reassuring to have someone with you who knows you and who will stay with you throughout the process. It is also helpful to have a second pair of ears.
WHY WOULD I WANT TO HAVE THE ABUSER CHARGED WITH A CRIME?
- Because you are the victim of a crime. It is against the law to hurt or threaten someone.
- If convicted the abuser may get jail/prison time or be fined.
- It may stop the violence.
If convicted of a crime, an abuser may serve jail or prison time. This does not always happen. You have the right to say to the prosecutor or the court what type of punishment you think the abuser should get. The prosecutor may consider your wishes in deciding to prosecute and in sentencing an abuser. The court can order the abuser to undergo counseling and treatment. The court can also order the abuser to have no contact with you.
Having the abuser prosecuted for a crime provides you with some protection because
- the abuser may be jailed
- the court can order no contact
- the court may be able to monitor the abuser's behavior
- The abuser may receive treatment for drug/alcohol use and for using violence.
The court system is one way to try to stop the violence. Abusers usually do not stop using violence without help.
Maybe you do not want the abuser to be punished. You just want the violence to stop. The court system is one way to stop the violence. Another thing that may help is having the abuser charged with a crime but not prosecuted. Abusers usually do not stop using violence even when they promise they will.
If the police were involved, the decision to press charges is not yours. When a crime is committed the police decide if they should give the report to the prosecutor. The prosecutor makes the decision to bring charges. If you ask for no charges sometimes the police will not give their report to the prosecutor. Sometimes the prosecutor does not want to bring charges if you are not willing to testify. But sometimes the abuse is stopped more often by prosecuting the abuser, even if you do not want to testify.
If the police were not involved, YOUshould write down the abuse even if you do not want the abuser charged with a crime. This is helpful for 2 reasons
- If the abuser gets violent again, you may need to prove it happened before.
- If you are ever involved in court hearings such as OFP, child custody, divorce, or juvenile court, it may help prove the abuser was violent in the past. The court may more likely believe there is a history of abuse if the abuse was written down when it happened.
Other things you can do
- If there is a police report, get and keep a copy. You can ask the prosecutor not to charge the abuser with a crime but it is up to him or her.
- If you have any injuries take pictures. When taking the pictures hold a sign with your name and the date on it so it's clear when it was taken. You can ask the police to take pictures. You can have a friend take pictures or have an advocate take pictures.
- Make sure the notes you write down and the papers you collect are kept where the abuser cannot find them.
- If you are hurt get medical attention. Ask your doctor or nurse to write down the cause of your injuries in your medical records. DO NOT make up a story about how you were injured like "walking into a door." It may be very hard later to get the truth out if your medical records do not say what really happened.
- Take pictures if any property was damaged. If you repair or replace the damaged property keep a receipt. Keep the damaged property in case you need it later to prove what happened.
- Keep a log or diary of the abuse that happens. Write down each time the abuser assaults you, threatens you, or hurts you. Write down the date and specific information.
June 12, 2008 - Chris pushed me into the bedroom wall. Said, "You're lucky I don't have a gun." Left shoulder was bruised.
If you need help in filing police reports, talking to the prosecutor or during the criminal proceedings, call your local battered women's service. If you are not sure if criminal charges will help you and want more information, call your local legal aid office or the Battered Women's Legal Advocacy Project at 612.343.9842 (toll-free 1.800.313.2666) or visit their website at http://www.bwlap.org for more information.
You can find additional information about domestic abuse and your rights at www.LawHelpMN.org.
A domestic abuse program can help you make plans for your safety. Advocates work with women even if they are not going through the criminal process. To find your local domestic abuse program, call the Minnesota Coalition for Battered Women at (651) 646-6177 or (800) 289-6177 or visit their website at www.mcbw.org. If you are in immediate danger, call 911. For additional help call the Minnesota Domestic Violence 24-Hour Crisis Line at866-223-1111. If you are in danger, please use a safer computer, call 911 or the Minnesota Domestic Violence Crisis Line at 1-866-223-1111 If you are in danger, please use a safer computer, call 911 or the Minnesota Domestic Violence Crisis Line at 1-866-223-1111
REMEMBER: No one has the right to hurt or threaten you. No one deserves to be hurt or threatened.
You are not the only person who has ever had problems like this. You are not alone. There are people and laws to help you. Advocates are available to help you and lawyers help too. People who have worked to stop domestic abuse have found that getting an OFP and/or criminal prosecution DOES HELP stop the violence.
The "Filing an Order for Protection Forms Packet" can be found on the Minnesota Judicial Branch website at
The "Petitioner's Harassment Packet" can be found on the Minnesota Judicial Branch website at http://www.mncourts.gov/default.aspx?page=513&item=96&itemType=packetDetails
If a district is listed next to a form, the form is for use within that judicial district only. If the word "statewide" is listed, the form can be used in any district in the state. The forms in the back of this booklet can be used statewide.
Harassment Restraining Order - FREE ONLINE DO-IT-YOURSELF FORM
You can apply for a Harassment Restraining Order online using a new automated system which interviews you and fills out the forms as you answer the questions.
The A2J Do-It-Yourself application for a Minnesota Harassment Restraining Order can be found on the LawHelpMN.org website at
To find your local legal aid office by county go to www.lawhelpmn.org/resource/legal-aid-offices
Minnesota Legal Services Coalition
Midtown Commons, Suite 101B
2324 University Avenue West
St. Paul, Minnesota 55114