Fayette County Local Rules: TEMPORARY RESTRAINING ORDERS

Used to be that we would routinely file restraining orders and then the General Assembly passed the Indiana Civil Protection Act.  That statute divides personal issues from property issues.  For issues of personal safety, we have to use a protective order.

Property issues still require a restraining order.  I freely admit that it has been a very long since I have seen anyone request a temporary restraining order.  Maybe people behave better now, perhaps the parties do not have property of such value that they feel the need for a restraining order.  Protective orders are still too common.

Perhaps my interest in noting this Fayette County local rule comes from a sense of nostalgia but there are some interesting points.  Most of the rule incorporates Indiana Trial Rule 65:

(E) Temporary Restraining Orders - Domestic Relations Cases. Parties wishing protection from domestic or family violence in Domestic Relations cases shall petition the court pursuant to IC 34-26-5.  Subject to the provisions set forth in this paragraph, in an action for dissolution of marriage, separation, or child support, the court may issue a Temporary Restraining Order, without hearing or security, if either party files a verified petition alleging an injury would result to the moving party if no immediate order were issued.

(1)     Joint Order. If the court finds that an order shall be entered under this paragraph, the court may enjoin both parties from:

(a)     transferring, encumbering, concealing, selling or otherwise disposing of any joint property of the parties or asset of the marriage except in the usual course of business or for the necessities of life, without the written consent of the parties or the permission of the court; and/or

(b)     removing any child of the parties then residing in the State of Indiana from the State with the intent to deprive the court of jurisdiction over such child without the prior written consent of all parties or the permission of the court.

(2)     Separate Order Required. In the event a party seeks to enjoin by a temporary restraining order the non-moving party from abusing, harassing, or disturbing the peace of the petitioning party or any child or step-child of the parties, or exclude the non-moving party from the family dwelling, the dwelling of the non-moving party, or any other place, and the court determines that an order shall be issued, such order shall be addressed to one person. A joint or mutual restraining order shall not be issued. If both parties allege injury, they shall do so by separate petitions. The trial court shall review each petition separately and grant or deny each petition on its individual merits. In the event the trial court finds cause to grant both petitions, it shall do so by separate orders.

(3)     Effect of Order. An order entered under this paragraph is automatically effective upon service. Such orders are enforceable by all remedies provided by law including contempt. Once issued, such orders remain in effect until the entry of a decree or final order or until modified or dissolved by the court

And for the Fayette County Rule:

LR21-FL00-FL-8

TEMPORARY RESTRAINING ORDERS

Subject to the provisions of Ind. Trial Rule 65, in an action for dissolution of marriage, legal separation or child support, the Court may issue a Temporary Restraining Order, without hearing or security, if either party files a verified petition alleging an injury would result to the moving party if no immediate order were issued.

If the Court finds that an order shall be entered, the Court may enjoin both parties from:  Transferring, encumbering, concealing, selling or otherwise disposing of any joint property of the parties or asset of the marriage without the written consent of the parties or the permission of the Court;  Removing any child of the parties then residing in the State of Indiana from the State of Indiana from the State with the intent to deprive the Court of jurisdiction over such child without the prior written consent of all parties or the permission of the Court.

In the event a party seeks to enjoin the non-moving party from abusing, harassing, disturbing the peace, committing a battery on the moving party or any child or step­child of the parties, or exclude the non-moving party from the marital residence, and the Court determines that an order shall be issued, such order shall be addressed to one person only. A joint or mutual restraining or protective order shall not be issued. If both parties allege injury, they shall do so by separate petitions. The Court shall review each petition separately and grant or deny each petition on its individual merits. In the event the Court finds cause to grant both petitions, it shall do so by separate orders. The moving party shall provide the Court the following information concerning the non-moving party:  Name; Age; Date of Birth; Race; Sex; Height; Weight;  Scars, tattoos or other identifiable characteristics; Home Address: Telephone No. Work Address: Work Telephone No; and. Work Hours.

 I just do not see where the Local Rule adds to the general state rule.

Want to Dismiss a Marion County Protective Order? Here is a Form

The Marion County Paternity Court in Indianapolis has paper forms in its court office.  The public can get them if they walk into the court.  Why they are not posted to the City-County website is a question most non-lawyers would have but I suspect whoever is in charge at the Marion Circuit Court just never thought of it.

Which lead me to post the form needed to dismiss a Marion County Protective Order here.

By the way, this form could be used elsewhere in Indiana.

Protective Order News - Madison and Marion County Pilot Program

A bit delayed in getting this out, but those interested may want to take a look at  Marion & Madison Counties Lead Effort to Improve Protective Order Registry

Marion and Madison Counties are serving as pilot counties for a new public access component of the protective order registry. The expanded registry will allow domestic violence advocates to complete required forms online at domestic violence shelters. Once the forms are completed, they can be printed and taken to the court clerk for filing. Since the information is already in the registry, the clerk can focus on getting the information to a judge to review. When a judge issues a protective order the information is sent to local, state, and federal law enforcement automatically and electronically. This pilot system is expected to save time and increase efficiency for the courts. It will also allow a person requesting a protective order to start the process with the help of a trained domestic violence advocate.

In 2007, Marion County had 4,177 new protective orders filed and Madison County had 1,264 new orders filed during that same period. Those thousands of requestors obtained their protective orders by going to the County Clerk’s office where they filed their petitions requesting a protective order. The process can include waiting in line and waiting for clerk staff to help them properly complete the paperwork.

The expanded registry is being piloted in Marion and Madison Counties and six other counties across the state including Allen, Elkhart, Grant, Tippecanoe, Saint Joseph, and Wabash Counties. It is being implemented by the Supreme Court’s Division of State Court Administration Judicial Technology and Automation Committee (JTAC). Justice Sullivan, who chairs JTAC, believes the expanded registry is one of the most significant accomplishments of the Committee, “We are helping to save lives with this partnership. This new public access function is being added after suggestions from domestic violence advocates and local clerks. By working closely with Indiana State Police, Marion and Madison County domestic violence advocates, and our state legislature we have developed a system that will do more to protect victims.”

***

The Indiana Supreme Court received a $135,235 grant from the Indiana Criminal Justice Institute to improve the electronic Protection Order Registry.  The money has helped pay for the development of the enhanced registry site.  The Protective Order Registry is used in 92 counties.  More information is available at www.in.gov/judiciary/jtac/programs/poregistry.html.

Divorce and Restraining Orders - an Idea from New York

In Indiana, Protective Orders deal with threats from spouses. Restraining orders deal with property issues. Once upon, there were only restraining orders and they dealt with protecting both people and property.

For the law on restraining orders we need to look at Indiana Rule of Procedure 65 and specifically:

(E) Temporary Restraining Orders - Domestic Relations Cases. Parties wishing protection from domestic or family violence in Domestic Relations cases shall petition the court pursuant to IC 34-26-5. Subject to the provisions set forth in this paragraph, in an action for dissolution of marriage, separation, or child support, the court may issue a Temporary Restraining Order, without hearing or security, if either party files a verified petition alleging an injury would result to the moving party if no immediate order were issued.

(1) Joint Order. If the court finds that an order shall be entered under this paragraph, the court may enjoin both parties from:

(a) transferring, encumbering, concealing, selling or otherwise disposing of any joint property of the parties or asset of the marriage except in the usual course of business or for the necessities of life, without the written consent of the parties or the permission of the court; and/or

(b) removing any child of the parties then residing in the State of Indiana from the State with the intent to deprive the court of jurisdiction over such child without the prior written consent of all parties or the permission of the court.

(2) Separate Order Required. In the event a party seeks to enjoin by a temporary restraining order the non-moving party from abusing, harassing, or disturbing the peace of the petitioning party or any child or step-child of the parties, or exclude the non-moving party from the family dwelling, the dwelling of the non-moving party, or any other place, and the court determines that an order shall be issued, such order shall be addressed to one person. A joint or mutual restraining order shall not be issued. If both parties allege injury, they shall do so by separate petitions. The trial court shall review each petition separately and grant or deny each petition on its individual merits. In the event the trial court finds cause to grant both petitions, it shall do so by separate orders.

(3) Effect of Order. An order entered under this paragraph is automatically effective upon service. Such orders are enforceable by all remedies provided by law including contempt. Once issued, such orders remain in effect until the entry of a decree or final order or until modified or dissolved by the court. 

While once standard operating procedure, I cannot recall any time in the past ten years when I have used a restraining order or seen anyone else using a restraining order.  I do not recall the last time I had a cleint worried that the other spouse would destroy or hide property.

osndiering all that I think the New York law described in New York Divorce and Family Law Blog's Automatic Stays: Protecting the Financial Interests of the Parties in Divorce a good idea:

In the past, many matrimonial actions got off to a particularly acrimonious start because one spouse was fearful that the other would transfer and hide assets, cancel insurance and run up debts as soon as they received notice of the divorce. As a result, one party had to go to the expense of making a motion to obtain an injunction preventing to the other spouse from acting financially irresponsibly.

***

The summons will now state that an order is in effect and that:

1) Neither part shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.
(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court.
(3) Neither party shall incur unreasonable debts hereafter, including but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action.
(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.
(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.

Alabama Protective Orders Go Online

Thanks to Florida Divorce Blog for Alabama Petitions for Orders of Protection Go High Tech:

Now, victims of domestic violence can prepare their petitions for an injunction for protection against domestic violence on any internet-connected computer.

From there, the data in the petition is electronically transmitted via the internet to law enforcement.

When domestic violence victims arrive at the courthouse, they can simply print out their waiting petitions for orders of protection and sign them.

Then the information will be electronically transmitted to the domestic violence judge on duty."

I am not aware of Indiana doing anything like this - or even having plans to do so.

News: New Protective Order Case

This just came in today via The Indiana Lawyer's COA: Non-violent contact order defective. I have not read the case yet but the following is too important not to post immediately.

"The Indiana Court of Appeals has remanded a case regarding a non-violent contact order issued by a Marion Superior judge June 30, 2008, which involved a divorcing couple. The ruling calls the order 'defective.'"

***
In DeVone Moore v. Damon Moore, No. 49A02-0810-CV-978, DeVone Moore's attorneys appealed a protective order granted to DeVone in response to physical, mental, and emotional abuse from her husband Damon Moore.

***

The abuse, which Damon had not denied, had escalated after he learned she was planning to file for divorce from him. The court had granted her an ex parte order for protection June 18, 2008, but amended that order June 30, 2008, so Damon could still have contact with DeVone, as long as it was "peaceable contact, without threats of violence or actual violence."

DeVone agreed to the peaceable contact because the two had a daughter together, and DeVone wanted her husband to still have contact with their child.

But the Court of Appeals disagreed with the trial court's non-violent contact order, calling it confusing.

"... The trial court issued an order for protection using the standard form authorized by the (Indiana Civil Protection Order Act)," Judge Margret Robb wrote. "Not only does the trial court's discussion of this alternative order confuse us, it obviously confused DeVone, who had difficulty understanding the relief being offered and communicating the relief she sought."

In its instructions to remand the protective order, Robb wrote, "... We hold that the order for protection does not provide the relief necessary to bring about a cessation of the violence or threat of violence as required by Indiana Code section 34-26-5-9(f). Therefore, we remand to the trial court to enter an order ... prohibiting communication, and ... requiring Damon to stay away from DeVone's residence and place of employment ...."

The Court of Appeals also instructed the trial court to include terms for unsupervised parenting time for Damon and their daughter, and to check "yes" for Damon to be Brady disqualified, meaning he couldn't buy, receive, or possess a gun while he was subject to the protective order.

Online Resources

This is another of my posts for the DIY crowd.

• HALT has a series of articles relating to family law issues.
• For those wandering in here from the United Kingdom, Family Bubble has a resources page here.
• Although I have a critique in the works, there is Custody Coach for those looking at a custody case (especially in California).
  

Indiana Senate working on lease protections for victims of domestic violence

I was not aware of this legislation until today. Protective orders can remove the abuser from the home but this often leaves questions about responsibilities for the rent payment. The Indiana Judicial Center has the following information:

The Senate Judiciary Committee heard HB 1509 concerning lease protections for victims of domestic violence. Landlords would have to change locks within 24 hours upon request of the tenant when presented with a copy of a Protection Order or No Contact Order against the perpetrator. The bill provides the tenant must reimburse the landlord for the cost of the locks in certain cases. The landlord must also release a tenant from the lease, after 30 days written notice to the landlord, if a written copy of the Protection Order or No Contact Order is provided to the landlord and other conditions are met. Kerry Blomquist, Legal Counsel, Indiana Coalition Against Domestic Violence, spoke in favor of the bill, which passed 6-0.