Domestic abuse restraining orders
In Wisconsin there are three main types of restraining orders: 1) Domestic Abuse Restraining Orders; 2) Child Abuse Restraining Orders; and 3) Harassment Restraining Orders. Although they are used as a collective term, they are very distinguishable orders, requiring very different elements of proof. Due to the rise in reported case of domestic abuse, here in St. Croix County as well as elsewhere in the Country, the courts have tried to initiate a system to assist victims in getting the protection they need swiftly. In this article I will explore the domestic abuse restraining orders and the necessary elements you need to prove before a court can issue an order and exactly what the order prevents the respondent from doing.
Governed under Wisconsin Statute §813.12 , a Domestic Abuse Restraining Order is an action that may be brought against a family member, a household member, a former spouse, someone with whom you have a child in common, someone with whom you have had a dating relationship or a caregiver. The statute is very explicit that the respondent must be someone over 18 years in age, in other words an adult. The respondent must be inflicting or threatening abuse against you, the petitioner, as specifically defined as: intentional physical pain or injury, intentional impairment of physical condition, violation of 1st, 2nd or 3rd degree sexual assault, intentional damage to physical property belonging to the petitioner or a threat to engage in any of the above stated conduct.
The petition can be filed in the County where the petitioner lives, the respondent lives, the abuse happened or the petitioner is temporarily staying . There is no fee for filing a domestic abuse restraining petition and the court will review the petition the same day as it is filed to give the petitioner an immediate answer. If the court finds that that the petitioner is in imminent harm from the respondent and that they meet the elements stated above, the court may issue a Temporary Restraining Order (TRO). A TRO prohibits further contact between the parties until the court can hold a hearing on all the issues stated by the petitioner in the petition, within 14 days, unless extended by consent of both parties. The respondent will then be served with a copy of the TRO, along with the return court date on the injunction itself.
An injunction hearing is held before the court, where both parties and witnesses are allowed to testify and present evidence regarding the petitioner’s allegation of abuse. Before an injunction is granted the court must find the elements stated above and find that it is reasonable to believe that the respondent has committed domestic abuse or based on prior conduct, will commit domestic abuse against the petitioner in the future. The court must find the petitioner to be in potential danger and that there is a pattern of domestic abuse. The court may not consider existing court orders that bars contact in lieu of dismissing or denying the injunction.
When a court issues an injunction they are ordering the respondent from committing any acts of domestic abuse against the petitioner. They can further require the respondent to avoid anywhere that the petitioner works, lives or regularly goes. In some instances the court will put a certain distance in these orders like 100 feet to 2 blocks, depending on the court, thereby making it very easy for the respondent to be arrested on any violation. The court can require the respondent not contact the petitioner through any means, even the use third parties, therefore only allowing contact through law enforcement or attorneys. This can be a difficult provision especially if the parties have children in common that they are co-parenting, however sometimes necessary given the circumstances. The court may put into place any other order that it feels necessary to help protect the petitioner from the respondent. Any violation of these orders is a criminal offense.
A requirement of a domestic abuse restraining order is the surrender of all firearms from the respondent since April 1, 1996. The firearms can be held at the Sheriff’s Department, as they do here in Hudson or surrendered to someone approved by the court. A respondent cannot possess or use a firearm then for the entire length of the order, which can be up to four years and then extended if the Court feels it is warranted. There are limited exceptions for law enforcement officers, member of the military or it is required as a term of employment to keep use their firearms.
The rise in Domestic Abuse throughout this country has required the courts to adopted statues like Wis. Stat. §813.12 to govern how they handle domestic abuse restraining orders. If you have any questions about this process, from either the petitioner or the respondent’s point of view, feel free to give us a call at Nelson & Lindquist to discuss your options.