DOMESTIC VIOLENCE

Domestic Violence Generally

Domestic Violence has been a crime in Ohio since 1979

A victim of domestic violence has both criminal and civil remedies at their disposal, including protection orders that can order the perpetrator to do, or refrain from doing, certain acts  

The definition of conduct that constitutes Domestic Violence is addressed more in-depth below; but, generally, the criminal and civil statutes define domestic violence as causing physical harm, attempting to cause physical harm, or making  threats of physical harm to a “Family or Household Member”

The DV statutes are geared toward protecting a narrow class of victims (the perpetrator’s immediate family and other relatives)

There are other criminal laws and other types of civil restraining orders available for those dealing with violence or threats from non-family

“Family or Household Member”  has a rather broad definition and encompasses more persons than just those living with the perpetrator

The definition includes all of the following persons that are currently residing with or HAVE RESIDED with the perpetrator

A spouse of Respondent

A person “Living as a Spouse” of the Respondent (normally a live-in girlfriend)

If someone cohabitates with the perpetrator they are considered a person “living as a spouse” and qualify for protection

If someone has previously cohabitated with the respondent within the last 5 years, they are a person living as a spouse, even if they had already moved out at the time of the incident

A Former Spouse of Respondent 

The Respondent’s parent or children

Any person related to the Respondent by blood or marriage

A parent or child of the spouse of Respondent

A parent or child of a person living as the spouse of the Respondent 

A parent or child of a former spouse of the Respondent

Any other person related by blood or marriage to a spouse, a former spouse or a person living as a spouse of the Respondent 

The natural parent of any child of which the Respondent is the other natural parent, even if they never lived together or were ever really a couple at all; they may have had a one-night-stand and produced a child 

Note that Ohio courts have included same-sex couples that cohabitate together within the definition of Family or Household Member, under the Person Living as a Spouse designation 

Remember that the victim need not still reside with the perpetrator in order to seek a CPO against him; in fact, the victim need not ever reside with the perpetrator to take advantage of a CPO  

Ohio law mandates that Ohio courts have prepared packets available for victims to fill out and file “pro se” (without an attorney); many courts have victims’ advocates that will walk you through the filing and hearing process  

Ohio law prohibits the charging of a filing fee, therefore, filing the motion for a CPO is free

The motion for a CPO may be filed within a Complaint for Divorce, but there would be a filing fee for the Divorce action    

The motion for a CPO needs to be filed in the proper Common Pleas Court; normally, the proper Court will be one of the following

The County in which the perpetrator resides

The County in which the victim resides

The County in which the victim temporarily resides, when escaping the home 

A Victim of Domestic Violence can do either or both of the following:

Have perpetrator arrested and charged with the Crime of Domestic Violence

Applicable statute is O.R.C. 2919.25

First-time conviction is generally a misdemeanor;  if the conviction is a misdemeanor, at most the perpetrator will be in local jail for 6 months    

There is the potential for a felony charge with subsequent convictions, however

Upon the filing of a criminal complaint alleging the crime of Domestic Violence, the Criminal Court can issue a Temporary Protection Order (TPO)

The motion for a TPO can be filed by the complainant (victim), by the arresting officer, or the Court can issue one on its own (“sua sponte”), if the Court finds that it is necessary for the “safety and protection” of the victim

Court must hold a hearing on the motion for a TPO within 24 hours of it being filed with the clerk’s office

The TPO lasts only during the pendency of the criminal case and as soon as there is a disposition (convicted/acquitted), the TPO automatically terminates

But, the Court can issue an Order at the disposition of the criminal case that requires the Defendant to stay away from the victim

The TPO can be issued as a condition of pre-trial release of the defendant, irrespective and independent of any bail determined by the Court 

 OR THE VICTIME CAN

File for a Civil Protection Order – O.R.C 3113

The Petitioner must file the petition in the appropriate county Common Pleas Court, usually in the Domestic Relations Division

Normally, petitioners first obtain an Ex Parte TPO immediately, then later obtain a CPO that will last for a certain period of time (no more than 5 years) and contain specific restrictions on the respondent

There are prepared packets available at the Clerk’s office that are legally sufficient motions for pro se petitioners to fill out and file with the Court

 
The Ex Parte Temporary Protection Order  (TPO)

If Petitioner requests one when filing for the CPO, the Court can issue an emergency Ex Parte Temporary Protection Order

“Ex Parte” basically means without the other party participating in the proceedings   

If Petitioner does request an Ex Parte TPO, the Court must hold a hearing on the same day the petition is filed – O.R.C. 3113.31(D)(1)

At the Ex Parte hearing, the Petitioner will testify and present other evidence, but the respondent will not be present and will not put forth any evidence or controvert the Petitioner’s evidence

As long as the petitioner puts forth sufficient evidence, the Court will issue a TPO and schedule a full hearing after which it will decide whether to issue a more permanent CPO

The reason the ex parte order is temporary is because it will last only until the court holds the full adversarial hearing at which Respondent will be able to present evidence and controvert the Petitioner’s evidence

Due Process mandates that respondent to have a say in court as to the allegations, and to have an ex parte order last for an extended duration would certainly tread upon constitutional rights 

The full hearing must be held within 10 days of the ex parte order, unless the respondent has been ordered to vacate his home

If Respondent has been ordered out of his home, the Court must hold the full hearing within 7 days

The standard for issuing the ex parte order pending the full hearing is “For Good Cause Shown”

Good cause for issuing a TPO is Evidence sufficient to demonstrate an Immediate and Present danger of domestic violence to a family or household member of the perpetrator

Although Domestic Violence is defined elsewhere in the statute, the O.R.C. 3113.31 actually defines “Immediate & Present Danger of Domestic Violence” for purposes of an Ex Parte TPO specifically

Immediate & Present Danger of DV includes, but is not limited to:  

Threats of bodily injury to a family or household member, or

The perpetrator has previously been convicted of the crime of Domestic Violence; basically, if the respondent has previously been convicted of DV, it is probably best to go ahead and issue the TPO to be on the safe side until the full hearing can be held

Civil Protection Order Hearing

This hearing will be held 7-10 days after the Ex Parte hearing, and the Respondent must be properly served with notice of the hearing – service must be accomplished pursuant to Ohio Civil Rules 4.1-4.6 (normally certified mail or sheriff)

Note: that Montgomery County Common Pleas Court requires Personal Service on Respondent as a local policy – other Counties may have very specific rules and the local rules need to be consulted

There are several types of conduct that warrant issuing a Domestic Violence CPO, as “Domestic Violence” is defined broadly in the statute; the petitioner need not have suffered actual physical harm – See O.R.C. 3113.31(A)

In order to succeed in obtaining a CPO, the petitioner must demonstrate by a Preponderance of the Evidence (more likely than not) that the respondent has engaged in “Domestic Violence”

“Domestic Violence” most commonly includes the following types of conduct:

Attempting to cause bodily injury to a family or household member

Success is not necessary – if the perpetrator tries to hurt a family or household member, it is sufficient conduct to warrant a CPO

Recklessly causing bodily injury to a family or household member

This would (logically) include intentionally causing bodily injury as well

But, it does not include negligently causing bodily injury (accidents not sufficient)

“Intentionally” basically means what it sounds like – it was the purpose of respondent to cause  bodily injury to petitioner

“Recklessly” basically means the perpetrator consciously disregarded a known risk that his conduct is likely to cause harm to Petitioner – i.e., he knew there was a probability the victim would be injured, but he engaged in the conduct anyway

That Respondent made threats that placed Petitioner in fear of imminent serious bodily injury

Note that the injury level for the “threats” version of DV is “Serious”

Petitioner must testify as to both the threat made by the Respondent and the Petitioner’s actual fear; if no testimony is presented as to Petitioner’s fear, the Court should not issue a CPO due to the threats

Any threat must be unconditional; conditional threats will not work (e.g., “if you take Bobby, I will kill you”)

The bodily injury threatened must be “Imminent”; threats of future harm not sufficient

Imminence has been described as “threatening to happen immediately,” “dangerously close to happening” or “just about to happen,” etc

The respondent must not only threaten immediate harm, but must be capable of following through with the threat as well

Effectively, Petitioner must testify to the following for “Threat DV”:

The residence of the perpetrator and/or victim – to establish venue 

The Respondent made a threat to Petitioner

That Petitioner is a “Family or Household Member” of Respondent

The Threat was of serious bodily injury to Petitioner

That the serious bodily injury is imminent – about to happen

That the threat has now placed Petitioner in fear of this serious bodily

In addition, as defined, “Domestic Violence” includes other conduct

Committing any sexually oriented offense against a family or household member, with sexually oriented offense having the same meaning as is used in O.R.C. 2950.01

Committing any act with respect to a child that would result in the child being found to be an “abused child” as that term is defined in O.R.C. 2151.031 (part of the juvenile court statute)

Committing a violation of O.R.C. 2903.11 or 2911.211

Remember: that the Petitioner must testify to the relationship with Respondent, the residence of the parties to establish proper venue, the particular conduct of the Respondent, and (sometimes) that the Victim is fearful

Although fear is only required for the “Threats” version of DV, if appropriate, it is best to have the petitioner testify as to any fear he or she may have of the Respondent 

It is important to note that there can be agreements made between the victim and perpetrator; the parties can agree as to the conditions contained in, and the duration of, the CPO

Often, agreed entries are part of a negotiated return to the home by the Respondent, where the Respondent is now, under penalty of contempt, required not to commit acts of DV against family and household members

Conditions in a CPO

If the Court issues a CPO, it has many conditions (restrictions) it can impose upon the Respondent

The Court can also issue an order affecting parental rights of minor children, issue temporary child support orders, and award temporary spousal support as well

 The following is a list of orders the Court can issue in a CPO

Prohibit respondent from abusing a family or household member

Prohibit respondent from committing a sexually oriented offense

Make Respondent leave the residence (there are limitations depending on circumstances)

Require Respondent to provide financial support for the victims, even if he has been evicted from the residence

Prohibit Respondent from entering the residence, school, business or place of employment of the victims

Issue Orders regarding the custody and visitation of minor children

The Court can award the victim sole custody of the children and prohibit the perpetrator from seeing the victim or the children

Note that a later Divorce Decree that allocates parental rights and responsibilities, and right to visitation will modify the CPO, if the decree differs from the CPO; this often happens when the CPO directs husband to stay away from his wife and children, but a later divorce decree grants the husband reasonable visitation of his minor children – the CPO is then considered modified

Order respondent to allow the victim the use of a motor vehicle

Apportion household and family personal property between Petitioner and Respondent

Require any party (perpetrator or victim) to attend counseling

Penalties for Violating a CPO

When a Respondent fails to follow the Court Order, there can be serious consequences, including jail time – although, absent further violence, the court will normally be reluctant to jail the violator

The Respondent is also subject to criminal penalties pursuant to O.R.C. 2919.27; This is ordinarily a misdemeanor, but depending on the history of the Respondent, a violation can rise to the level of a 5th degree felony (carries a maximum penalty of 1 year imprisonment)

The Respondent is also considered in “Civil Contempt of Court” when he violates the conditions set forth in the CPO, and he can be punished outside of the criminal courts 

Civil contempt (violating a valid court order) carries a potential penalty of up to 30 days in jail and $250.00 fine for a first offense.  See O.R.C. 2705.05(A)(1); Penalties escalate for subsequent violations, however

Note, though, that in order to pursue the civil remedy of contempt, the victim must file a motion for contempt (“show cause motion”) with the court that issued the CPO and it must be served on the Respondent

The Court will then hold a hearing, and if the evidence establishes that Respondent violated the conditions of the CPO, the Court can hold the violator in contempt

It is very important to remember that the Petitioner and other protected people can violate the CPO – the CPO very often prohibits contact between Petitioner and Respondent, and if Petitioner contacts Respondent, this is a violation as well  

Miscellaneous Notes

If the Petition for a CPO alleges violence to a minor child, the Court is required to report it pursuant to O.R.C. 2151.421 – children’s services will then be involved

A Petitioner can have the CPO registered in any county in the state, so that enforcement is available with the local authorities; therefore, if the victim moves to another county, she should register the CPO with the local clerk of court so that the police are made aware of the CPO

If the Respondent wants to obtain a CPO against the Petitioner as well (“cross-CPOs”), the Respondent must file a motion of his own – The Court cannot just grant cross-CPOs based upon testimony that the Petitioner was also an aggressor 

Respondent’s motion must be served on Petitioner at least 48 hours before the scheduled hearing on Petitioner’s motion   

Although the longest that a CPO can last if 5 years, the Petitioner can apply for extensions of the CPO before the CPO expires; the bases upon which the Court can grant an extension is detailed in the statute and an attorney should be consulted as to whether the Petitioner is likely to prevail

If the Petitioner seeks orders awarding he or she temporary custody of minor children, temporary spousal, or temporary child support, the Court will require certain affidavits to be filed along with the motion for CPO

Request for Temp Spousal Support – must file an “Affidavit of Financial Disclosure”  

Request for Temp Custody Order – Must file a “Parenting Proceeding Affidavit”

FAMILY LAW ISSUES

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