Minnesota Order for Protection Attorney
Are you going through heated divorce or custody battle? Has an ex-spouse sought to exclude you from a home or from having contact with children? It is all too common for vindictive spouses and partners to seek to disrupt your life through the filing for an Order for Protection (OPF). These orders are civil in nature but have potential for serious criminal consequences if the terms are violated. Don’t wait to be accused of violating an Order for Protection. Don’t let the order issue. If you have been served with court papers from someone seeking an Order for Protection, defend yourself.
Brent S. Schafer has successfully defended numerous clients against accusers seeking an Order for Protection. Brent is a former prosecutor and has spent the last 17 years in the courtroom examining and cross-examining witness. Brent will guide you through this trying time and help you defend yourself against any allegation. Don’t let false facts result in the issuing of an Order that will affect your basic freedoms.
If you or a loved one have been served with court papers seeking an Order for Protection, call Brent S. Schafer at 612-940-0129 or Toll Free at 1-877-880-9900. He can help you today! Call now for a free consultation.
What is an Order for Protection?
Any family or household member, a guardian or household member, or reputable adult age 25 or older may request an Order for Protection on behalf of minor family or household member. A minor age 16 or older may petition on their own behalf against a spouse, a former spouse, or a person with whom the minor has a child in common if the court determines that the minor is of sufficient maturity and judgment and it is in the best interests of the minor. These persons described above may petition for an OFP where there is domestic abuse.
Domestic abuse is defined as physical harm, bodily injury; or assault, infliction of fear of imminent physical harm, bodily injury, or assault; or terroristic threats, criminal sexual conduct or interference with an emergency call.
Family or household member means spouses, former spouses, parents, children, persons related by blood, persons presently residing together or who have resided together in the past, persons with a child in common, a man and woman where the woman is pregnant and the man is alleged to be the father, persons involved in a significant romantic or sexual relationship.
The burden on establishing the need for an Order for Protection is on the Petition. It is important that you understand how critical the proper attorney is when your rights and your basic freedoms are at stake. Brent has successfully defended numerous clients in Order for Protection Hearings. Call Brent now for a free consultation to discuss your case. You have very little time to prepare your defense. You need to be immediately working on defending yourself!! Witnesses need to be interviewed and evidence gathered in order to protect your rights and guarantee a fair hearing.
Having an Order for Protection issued against you is something that can effect employment, the right to possess firearms and to participate in activities involving minor children, such as coaching or teaching. Background checks will reveal the existence of these orders. A violation of these orders will result in serious criminal charges and jail. Don’t wait to be arrested for a claimed violation of an Order for Protection; fight against the order being issued.
Brent S. Schafer is a seasoned, 17 year, courtroom litigator. He has represented clients in 58 of Minnesota's 82 counties. Brent is willing to speak with you 7 days a week, 24 hours a day if necessary. We accept all major credit cards. You will find our fees to be reasonable and competitive with other quality criminal defense firms in the area.
Do not be fooled into allowing an Order for Protection to be issued “without a finding of abuse or wrong doing on your part.” This is often a way people are talked into allowing an order to issue. Whether or not a factual finding made, the Order for Protection will issue and any “claimed” violation will land you in jail.
If you have an order against you and the other party is seeking an extension, don’t go it alone. There are specific facts that the moving party must prove in order to get an Order for Protection or to extend an existing Order for Protection. The burden is on the moving party to establish facts justifying and Order for Protection. This evidence must be presented in open court and all witnesses subject to cross-examination.
If you or a loved one have been served with court papers seeking an Order for Protection, call Brent S. Schafer at 612-940-0129 or Toll Free at 1-877-880-9900. He can help you today! Call now for a free consultation.
Brent Schafer practices in the following counties: Hennepin County, Ramsey County, Washington County, Dakota County, Scott County, Anoka County, Isanti County, Pine County, Chisago County, Goodhue County, Winona County, Wabasha County, Rice County, Houston County, Olmsted County, Fillmore County, Mower County, Freeborn County, Martin County, Jackson County, Nobles County, Rock County, Pipestone County, Murray County, Cottonwood County, Dodge County, Steele County, Waseca County, Blue Earth County, Brown County, Redwood County, Nicollet County, Lyon County, Lincoln County, Yellow Medicine County, Renville County, Lac Qui Parle, Chippewa County, McLeod County, Carver County, Wright County, Meeker County, Kandiyohi County, Sherburne County, Benton County, Sterns County, Pope County, Douglas County, Grant County, Stevens County, Swift County, Big Stone County, Traverse County, Wilkin County, Otter Tail County Todd County, Morrison County, Mille Lacs County, Carlton County, Aitkin County, Crow Wing County, Sibley County, Wadena County, Cass County Hubbard County, Becker County, Clay County, Norman County, Cook County, Lake County, St. Louis, Itasca County, Koochiching County, Beltrami County, Lake of the Woods County, Mahnomen County, Roseau County, Kittson County, Marshall County, Polk County, Pennington County, Red Lake County, Kanabec County and Faribault County.
Order for Protection.
There shall exist an action known as a petition for an order for protection in cases of domestic abuse.
(a) A petition for relief under this section may be made by any family or household member personally or by a family or household member, a guardian as defined in section 524.1-201, clause (20), or, if the court finds that it is in the best interests of the minor, by a reputable adult age 25 or older on behalf of minor family or household members. A minor age 16 or older may make a petition on the minor's own behalf against a spouse or former spouse, or a person with whom the minor has a child in common, if the court determines that the minor has sufficient maturity and judgment and that it is in the best interests of the minor.
(b) A petition for relief shall allege the existence of domestic abuse, and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought.
(c) A petition for relief must state whether the petitioner has ever had an order for protection in effect against the respondent.
(d) A petition for relief must state whether there is an existing order for protection in effect under this chapter governing both the parties and whether there is a pending lawsuit, complaint, petition or other action between the parties under chapter 257, 518, 518A, 518B, or 518C. The court administrator shall verify the terms of any existing order governing the parties. The court may not delay granting relief because of the existence of a pending action between the parties or the necessity of verifying the terms of an existing order. A subsequent order in a separate action under this chapter may modify only the provision of an existing order that grants relief authorized under subdivision 6, paragraph (a), clause (1). A petition for relief may be granted, regardless of whether there is a pending action between the parties.
(e) The court shall provide simplified forms and clerical assistance to help with the writing and filing of a petition under this section.
(f) The court shall advise a petitioner under paragraph (e) of the right to file a motion and affidavit and to sue in forma pauperis pursuant to section 563.01 and shall assist with the writing and filing of the motion and affidavit.
(g) The court shall advise a petitioner under paragraph (e) of the right to serve the respondent by published notice under subdivision 5, paragraph (b), if the respondent is avoiding personal service by concealment or otherwise, and shall assist with the writing and filing of the affidavit.
(h) The court shall advise the petitioner of the right to seek restitution under the petition for relief.
(i) The court shall advise the petitioner of the right to request a hearing under subdivision 7, paragraph (c). If the petitioner does not request a hearing, the court shall advise the petitioner that the respondent may request a hearing and that notice of the hearing date and time will be provided to the petitioner by mail at least five days before the hearing.
(j) The court shall advise the petitioner of the right to request supervised parenting time, as provided in section 518.175, subdivision 1a.
Hearing on application; notice.
(a) Upon receipt of the petition, the court shall order a hearing which shall be held not later than 14 days from the date of the order for hearing unless an ex parte order is issued.
(b) If an ex parte order has been issued under subdivision 7 and the petitioner seeks only the relief under subdivision 7, paragraph (a), a hearing is not required unless:
(1) the court declines to order the requested relief; or
(2) one of the parties requests a hearing.
(c) If an ex parte order has been issued under subdivision 7 and the petitioner seeks relief beyond that specified in subdivision 7, paragraph (a), or if the court declines to order relief requested by the petitioner, a hearing must be held within seven days. Personal service of the ex parte order may be made upon the respondent at any time up to 12 hours prior to the time set for the hearing, provided that the respondent at the hearing may request a continuance of up to five days if served fewer than five days prior to the hearing which continuance shall be granted unless there are compelling reasons not to.
(d) If an ex parte order has been issued only granting relief under subdivision 7, paragraph (a), and the respondent requests a hearing, the hearing shall be held within ten days of the court's receipt of the respondent's request. Service of the notice of hearing must be made upon the petitioner not less than five days prior to the hearing. The court shall serve the notice of hearing upon the petitioner by mail in the manner provided in the Rules of Civil Procedure for pleadings subsequent to a complaint and motions and shall also mail notice of the date and time of the hearing to the respondent. In the event that service cannot be completed in time to give the respondent or petitioner the minimum notice required under this subdivision, the court may set a new hearing date no more than five days later.
(e) If for good cause shown either party is unable to proceed at the initial hearing and requests a continuance and the court finds that a continuance is appropriate, the hearing may be continued. Unless otherwise agreed by the parties and approved by the court, the continuance shall be for no more than five days. If the court grants the requested continuance, the court shall also issue a written order continuing all provisions of the ex parte order pending the issuance of an order after the hearing.
(f) Notwithstanding the preceding provisions of this subdivision, service on the respondent may be made by one week published notice, as provided under section 645.11, provided the petitioner files with the court an affidavit stating that an attempt at personal service made by a sheriff or other law enforcement or corrections officer was unsuccessful because the respondent is avoiding service by concealment or otherwise, and that a copy of the petition and notice of hearing has been mailed to the respondent at the respondent's residence or that the residence is not known to the petitioner. Service under this paragraph is complete seven days after publication. The court shall set a new hearing date if necessary to allow the respondent the five-day minimum notice required under paragraph (d).
Violation of an order for protection.
(a) A person who violates an order for protection issued by a judge or referee is subject to the penalties provided in paragraphs (b) to (d).
(b) Except as otherwise provided in paragraphs (c) and (d), whenever an order for protection is granted by a judge or referee or pursuant to a similar law of another state, the United States, the District of Columbia, tribal lands, or United States territories, and the respondent or person to be restrained knows of the existence of the order, violation of the order for protection is a misdemeanor. Upon a misdemeanor conviction under this paragraph, the defendant must be sentenced to a minimum of three days imprisonment and must be ordered to participate in counseling or other appropriate programs selected by the court. If the court stays imposition or execution of the jail sentence and the defendant refuses or fails to comply with the court's treatment order, the court must impose and execute the stayed jail sentence. A violation of an order for protection shall also constitute contempt of court and be subject to the penalties provided in chapter 588.
(c) A person is guilty of a gross misdemeanor who knowingly violates this subdivision within ten years of a previous qualified domestic violence-related offense conviction or adjudication of delinquency. Upon a gross misdemeanor conviction under this paragraph, the defendant must be sentenced to a minimum of ten days imprisonment and must be ordered to participate in counseling or other appropriate programs selected by the court. Notwithstanding section 609.135, the court must impose and execute the minimum sentence provided in this paragraph for gross misdemeanor convictions.
(d) A person is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the person knowingly violates this subdivision:
(1) within ten years of the first of two or more previous qualified domestic violence-related offense convictions or adjudications of delinquency; or
(2) while possessing a dangerous weapon, as defined in section 609.02, subdivision 6.
Upon a felony conviction under this paragraph in which the court stays imposition or execution of sentence, the court shall impose at least a 30-day period of incarceration as a condition of probation. The court also shall order that the defendant participate in counseling or other appropriate programs selected by the court. Notwithstanding section 609.135, the court must impose and execute the minimum sentence provided in this paragraph for felony convictions.
(e) A peace officer shall arrest without a warrant and take into custody a person whom the peace officer has probable cause to believe has violated an order granted pursuant to this section or a similar law of another state, the United States, the District of Columbia, tribal lands, or United States territories restraining the person or excluding the person from the residence or the petitioner's place of employment, even if the violation of the order did not take place in the presence of the peace officer, if the existence of the order can be verified by the officer. The probable cause required under this paragraph includes probable cause that the person knows of the existence of the order. If the order has not been served, the officer shall immediately serve the order whenever reasonably safe and possible to do so. An order for purposes of this subdivision, includes the short form order described in subdivision 8a. When the order is first served upon the person at a location at which, under the terms of the order, the person's presence constitutes a violation, the person shall not be arrested for violation of the order without first being given a reasonable opportunity to leave the location in the presence of the peace officer. A person arrested under this paragraph shall be held in custody for at least 36 hours, excluding the day of arrest, Sundays, and holidays, unless the person is released earlier by a judge or judicial officer. A peace officer acting in good faith and exercising due care in making an arrest pursuant to this paragraph is immune from civil liability that might result from the officer's actions.
(f) If the court finds that the respondent has violated an order for protection and that there is reason to believe that the respondent will commit a further violation of the provisions of the order restraining the respondent from committing acts of domestic abuse or excluding the respondent from the petitioner's residence, the court may require the respondent to acknowledge an obligation to comply with the order on the record. The court may require a bond sufficient to deter the respondent from committing further violations of the order for protection, considering the financial resources of the respondent, and not to exceed $10,000. If the respondent refuses to comply with an order to acknowledge the obligation or post a bond under this paragraph, the court shall commit the respondent to the county jail during the term of the order for protection or until the respondent complies with the order under this paragraph. The warrant must state the cause of commitment, with the sum and time for which any bond is required. If an order is issued under this paragraph, the court may order the costs of the contempt action, or any part of them, to be paid by the respondent. An order under this paragraph is appealable.
(g) Upon the filing of an affidavit by the petitioner, any peace officer, or an interested party designated by the court, alleging that the respondent has violated any order for protection granted pursuant to this section or a similar law of another state, the United States, the District of Columbia, tribal lands, or United States territories, the court may issue an order to the respondent, requiring the respondent to appear and show cause within 14 days why the respondent should not be found in contempt of court and punished therefor. The hearing may be held by the court in any county in which the petitioner or respondent temporarily or permanently resides at the time of the alleged violation, or in the county in which the alleged violation occurred, if the petitioner and respondent do not reside in this state. The court also shall refer the violation of the order for protection to the appropriate prosecuting authority for possible prosecution under paragraph (b), (c), or (d).
(h) If it is alleged that the respondent has violated an order for protection issued under subdivision 6 or a similar law of another state, the United States, the District of Columbia, tribal lands, or United States territories, and the court finds that the order has expired between the time of the alleged violation and the court's hearing on the violation, the court may grant a new order for protection under subdivision 6 based solely on the respondent's alleged violation of the prior order, to be effective until the hearing on the alleged violation of the prior order. If the court finds that the respondent has violated the prior order, the relief granted in the new order for protection shall be extended for a fixed period, not to exceed one year, except when the court determines a longer fixed period is appropriate.
(i) The admittance into petitioner's dwelling of an abusing party excluded from the dwelling under an order for protection is not a violation by the petitioner of the order for protection.
A peace officer is not liable under section 609.43, clause (1), for a failure to perform a duty required by paragraph (e).
(j) When a person is convicted under paragraph (b) or (c) of violating an order for protection and the court determines that the person used a firearm in any way during commission of the violation, the court may order that the person is prohibited from possessing any type of firearm for any period longer than three years or for the remainder of the person's life. A person who violates this paragraph is guilty of a gross misdemeanor. At the time of the conviction, the court shall inform the defendant whether and for how long the defendant is prohibited from possessing a firearm and that it is a gross misdemeanor to violate this paragraph. The failure of the court to provide this information to a defendant does not affect the applicability of the firearm possession prohibition or the gross misdemeanor penalty to that defendant.