Porter County Sheriff's Department


Holiday Safety

PROTECTIVE ORDERS

House Enrolled Act 1232, Indiana's new  Protective Order Statute was revised and enacted by the Indiana General Assembly and became effective on July 1, 2002. The statute is based upon the Model Code on Domestic and Family Violence.

Protective orders are limited to domestic or family violence situations. No contact orders remain available;

Orders will last for two (2) years, or until otherwise specified by the court;

Judges have sweeping powers to craft orders specific to each family, in order to reduce the recurrence of violence and to protect all family members;

Elimination of the special process for registering foreign orders; foreign orders registered in the same manner as Indiana protective orders;

Standard forms for civil protective orders;

One central statute for all protective orders for domestic or family violence regardless of case type;

Statutory provision for surrender of weapons;

Consistent terminology and definitions throughout the Indiana Code;

Consistent standards involving family violence for custody and visitation matters;

Mandatory arrest for violations of protective and no-contact orders (Invasion of Privacy);

Increased penalties for Invasion of Privacy; and

Modifications of Trial Rule 65(E) in order to reconcile it with the new statutory framework.

Protective Order forms can be downloaded
 from the Access Indiana Website

 

Frequently asked Questions

Eligibility for Protection Order

Q: What "types of relationships" fall under the definition family or household member?

Ind. Code 34-6-2-44.8 defines family or household member to include:
1. a person who is a current or former spouse;
2. a person who is dating or has dated;
3. a person who is engaged or was engaged in a sexual relationship;
4. a person who is related by blood or adoption;
5. a person who is related was related by marriage;
6. a person who has an established legal relationship or previously established a legal relationship: (a) as a guardian; (b) as a ward; (c) as a custodian; (d) as a foster parent; or in a capacity similar to those listed in (a) through (d);
7. a person who has a child in common; and
8. a minor child of a person in a relationship described in subdivisions (1) through (7).

Q: Does Indiana's Civil Protection Order Act cover any of the following situations after July 1, 2002?

Neighbors arguing about a fence line? No.

One neighbor parks his car in front of next-door neighbor's house? No

One neighbor cuts his grass and the lawn mower throws the clippings onto the car parked in the driveway of next-door neighbor? No

Neighborhood incivility disputes are not included in the new Protection Order act. Neighborhood dispute resolution centers are already provided for under IC 34-57-3-1 et seq. but not funded at the present time.
Other legal remedies may be sought including small claims, a civil action, a criminal case or contact Carol Davidson of the Community Mediation Program at (219) 462-1127.

If you have a legal problem you should consult with a lawyer. If you cannot afford an attorney, you may go to www.in.gov/judiciary/self-service website concerning legal assistance or pro se representation.

You may also contact the Caring Place Legal Services Coordinator at (219) 464-0840, extension # 103. This is a FREE service.

 

Q: What is the difference between domestic and family violence Protection Orders and No Contact Orders under the new law?

A No Contact Order may only be issued in a CHINS, Delinquency or criminal case. No Contact Orders are not limited to family or household violence, stalking or sex offenses as are Protection Orders.

Stalking and Sexual Offenses

Q: Does a criminal charge and/or a conviction need to occur before a victim of stalking or sexual offense may seek a Protection Order?

No. A victim of stalking or a sex offense may file prior to criminal charges being filed. The allegations must relate to acts covered by Ind. Code 35-45-10-1 for stalking and Ind. Code 35-42-4 for a sex offense.

 

Q: Can Protection Orders for victims of stalking and sexual offenses only be obtained against family or household members?

No. Protection Orders for victims of stalking and sexual offenses can be obtained against family or household members or strangers if the stranger has committed the act of stalking or a sexual offense against the petitioner for the Protection Order.

 

Q: What are the elements of the crime of stalking? What circumstances constitute stalking?
A person who has been a victim of stalking may file a petition for a Protection Order against a person who has committed an act of stalking under Ind. Code 35-45-10. See also Ind. Code 34-26-5-2. If you have been the victim of a crime, you should contact law enforcement and the prosecutor's office immediately.

Service

Q: A Protection Order is granted under the new statute that does not require a further hearing unless the Respondent requests a hearing within 30 days. What if there was not good service on the Respondent? For example, what if there is a return showing copy service, but the follow-up 1st class mail is returned and marked, "vacant" or "not at this address." The mail goes to the Clerk who makes a minute entry.

How does the court learn of the lack of service?
What should the court do about the lack of service?
Is there a valid and enforceable Protection Order in existence?
Who tells the Petitioner additional action is required?
What if the Petitioner does not know where the Respondent is located?

The new civil protection order statute does not change existing Indiana law on service of process.

 

Q: If an attorney enters an appearance for a respondent in a Protection Order case, how can the petitioner be served?

Petitioner must give a public mailing address under the new law.

Petition

Q: Why is the Petition for a Protective Order so long and not simpler?

Protective Orders must be available to a variety of persons with diverse situations. The filing of a Petition for a Protection Order begins a substantial legal process in which victim safety is addressed and could result in a violator being incarcerated for up to three (3) years. Detailed and accurate information about the parties and the claims is necessary for courts and police agencies to be effective. If a petitioner's safety is truly in jeopardy, taking the time to fill out a required form or if necessary seeking help from a victim assistant, shelter provider, friend, family member or lawyer is not unreasonable.

 

Q: In some counties there is a practice of requiring a police report to permit the filing of a Protection Order petition. Is this permitted under the new law?

No.

Hearings

Q: When will it be necessary to set a hearing date after the issuance of an Ex Parte Protection Order?

It depends on the relief requested by the petitioner and ordered by the court. A complete discussion of this topic is contained in the instructions for the Petition for a Protection Order

 

Q: What circumstances will automatically require the need for a hearing?

See above.

 

Q: Many of the old Temporary Protective Order petitioners were "no shows" at the permanent protective order hearing and those temporary Protection Orders were dissolved. Now, those Protection Orders not requiring further hearing will not get dissolved. Won't many more Protection Orders remain in effect when the Petitioner has no continued interest and/or need for the Protection Order?

Yes. More Protection Orders may remain in effect than under the prior statute. To receive a Protection Order, there must be finding that domestic or family violence has occurred sufficient to justify the issuance of the order, meaning the respondent represented a credible threat to the safety of a petitioner or a member of the petitioner's household. See Ind. Code 34-26-5-9. These orders will remain in effect for two years. Because of the serious nature of the orders issued under the new statute, the committee believes they should remain in effect.

Lapse of Time Between Filing and Disposition

Q: The prior Protective Order procedure referred to a six-month time period within which the act complained of in the petition had to have occurred. Is there a similar time period in the new statute?

No. Ind. Code 34-26-5-13 provides the court may not deny a petition relief solely because of a lapse of time between an act of domestic or family violence and the filing of a petition. A perpetrator of domestic or family violence may pose a risk of violence long after the last act or episode of violence. This may occur when the intimate partner is incarcerated for a period of years before release.

Protection Orders While Other Cases Exist

Q: When a dissolution or paternity action is pending and there is a need for an Order of Protection, will a Protection Order case get a new case number if either party in the dissolution or paternity action files it?

This was the most frequently asked question by attorneys, judges, and clerks. The committee believes a new case number should be issued for the Protection Order for the following reasons: Protection Order cases now focus solely on protecting victims of domestic or family violence, sexual abuse or stalking. There are different evidentiary and confidentiality issues associated with Protection Orders than a domestic relations or paternity case. The orders in a separate Protection Order case will follow a different path than those for the dissolution or paternity action. In addition, in order to get a true count the volume of Protection Order cases in Indiana a new case number should be obtained for a Protection Order case filed by either party in a dissolution or paternity action.

Clerk's offices and courts should note the Protection Order case in the file or case management system that includes the dissolution or paternity action. The committee understands this recommendation may cause concerns in courts that routinely handle dissolution or paternity cases, but not Protection Order cases. However, the committee understands the intent of the new statute is to emphasize the seriousness of Protection Orders by keeping them separate from all other actions.

The Protection Order statutes refer to a proceedings being filed "in a pending case" where the dissolution case is pending. The committee believes this means a new case number should be generated when a petition for a Protection Order is filed. The petition for an Order of Protection should be filed in the court in which the paternity of dissolution case is pending.

 

Q: If two parties are beginning a dissolution, and one party needs a Protection Order, must two petitions be filed - one for the dissolution and one for the Protection Order?

Yes. Two petitions must be filed in this instance, one for the dissolution and one for the Protection Order. The petition for the Order of Protection must be in the format prescribed by the Division of State Court Administration and can be found at the Protection Order website. All the forms and procedures for Protection Orders must be the same ones as indicated in Ind. Code 34-26-5. Both petitions should be filed in the same court.

 

Q: If two parties are beginning a dissolution action, can a party file a petition for a Protection Order and a temporary restraining order to protect the assets of both parties?

An attorney will file a dissolution petition, a petition for a Protection Order, and a temporary restraining order to prevent a party from disturbing assets.

 

Q: If a dissolution or paternity petition is filed, and a petition for a Protection Order is filed, must 2 petitions and 2 separate orders be issued?

Two separate petitions must be filed, and two separate orders must be issued, one for either the dissolution or paternity case, and one for the Protection Order action.

Q: After a dissolution decree is entered, if a former spouse seeks a Protection Order at this stage, in what court should it be filed?

If there are no minor children, it does not matter were the Protection Order case is filed. If there are children, the petition for the Protection Order should be filed in the court with jurisdiction over the dissolution. It should still have a separate case number.

 

Q: If a Protection Order is issued with visitation, custody, and child support covered in the order, can those findings be used in lieu of a preliminary hearing in a dissolution case?

This decision should be left to the discretion of the trial court.

 

Q: Former wife and new girlfriend cannot get along. New wife and former wife or new girlfriend and former girlfriend cannot get along. Can either one get a Protection Order against the other? Do either one fall into the definition of "family or household member" under Ind. Code 34-6-2-44.8?

Generally the new wife and former wife or new girl friend and former girlfriend cannot get a Protection Order against the other unless they otherwise fit under some portion of the definition of family or domestic member.

 

Q: If a restraining order is received under TR 65 in a dissolution case, should it be "transferred" to a Protection Order?

No. When a restraining order is issued in a dissolution case, it keeps its character as a restraining order. It may contain elements protecting one person from "harassment" but it should remain as a restraining order. There is nothing in TR 65 to prevent a litigant from having a restraining order and Protection Order in the same case. However, only a Protection Order will be eligible for entry on any state or national Protection Order registries. It will only be a crime to violate a Protection Order; a Trial Rule 65 restraining order will be enforced by civil contempt proceedings.

 

Q: How do the new Protection Order provisions in dissolution and paternity cases interact with T.R.65? If the new law is the only basis for a Protection Order, and the sections of Title 31 that provided for restraining orders were repealed, isn't the new law now in conflict with T.R. 65? Which law governs?

An amendment is pending for Trial Rule 65 to address this concern.

Law Enforcement

Q: Ind. Code 35-33-1-1.5 (section 60 of act) indicates the duties of a law enforcement officer when responding to a "run" for domestic violence. It includes ensuring safety, notifying the alleged victim of his/her rights under IC 35-40 and confiscating firearms, ammunition and deadly weapons. Are they required to be trained in this area?

Indiana law has provided since 1991 that law enforcement officers must have training on domestic violence. It will be the responsibility of law enforcement departments to develop "notification cards" for victim rights. This is similar to procedures in other
states.

 

Q: Should the Notice to the State Police Re: Firearms be used with a No Contact Order or only with an "Order of Protection?"

Only the Protection Order statute requires notice to the Indiana State Police. However, when you complete Section II (Brady questions) of the Confidential Form, you are providing the Indiana State Police with the same information.

Enforcement of Protection Orders

Q: If a violation of a Protection Order occurs, should civil contempt be filed or a criminal charge of invasion of privacy be filed?

The protective order committee believes the violation of a Protection Order is a very serious criminal matter. Information about a violation of a Protection Order should be given to the prosecutor for filing of a criminal invasion of privacy charge.

 

Q: If a Protection Order is issued with child support covered, who enforces it? Does it become a IV-D issue if the Respondent doesn't pay?

It is unknown who will enforce child support unpaid in a Protection Order. This issue should be covered by the pending or about to filed paternity or dissolution case.

Clerks

Q: How much assistance may a clerk offer a litigant under the new Protection Order Act without running afoul of the prohibition against unauthorized practice of law?

Indiana's Protection Order statutes provide a clerk shall provide, in addition to forms, "…clerical assistance in reading or completing the forms and filing the petition. Clerical assistance provided by the clerk or court personnel under this section does not constitute the unauthorized practice of law" I.C. 34-26-5-3 (d). An excellent resource for identifying what is and what is not legal advise is Indiana's Pro Se Assistance Project.

 

Q: Could a pro se litigant file a lawsuit against a clerk's office that did not provide enough clerical assistance? Or the assistance they gave was too much like legal advice and the "advice" given was wrong?

An aggrieved litigant can bring a lawsuit at any time for any reason. A clerk should check with their local legal counsel if questions arise in this area.

Fees

Q: Is it possible for a judge to assess the Respondent a civil filing fee as a cost under the new Protection Order act?
Yes. See IC 35-26-5-16.

 

Q: Some courts charge a filing fee to the petitioner if the petitioner requests the dismissal of a Protection Order. Is this permitted under the new law?

No. Indiana's Protection Order Act does not permit the assessment of a fee against the petitioner if a petitioner requests dismissal of a Protection Order.

 

Q: Is it permitted under the Protection Order statute for a sheriff or law enforcement officer to charge a service of process fee when serving a respondent?

No. See Ind. Code 34-26-5-16.

Juvenile/Criminal No Contact Orders

Q: Is it necessary to use the juvenile's initials, rather that the child's name, in a caption when using No Contact Orders in CHINS and Delinquency cases?

Juvenile proceedings are confidential in nature. No Contact Orders in CHINS and Delinquency cases should be handled the same as under prior law.

 

Q: Can a juvenile get a Protection Order against a parent?

Yes. See Ind. Code 34-26-5-2 (b) which permits a child to file against a family or household member who commits an act of domestic or family violence or a person who has committed stalking or a sex offense.

 

Q: Can a No Contact Order be used against a business? For example, can a condition of probation provide an offender is required to stay out of a certain store or business?

Yes. See Ind. Code 35-50-7-1 et. seq. This statute provides a court may, as a condition of probation, prohibit a person from entering the area or property where an offense was committed by the person.

 

Q: Does the committee have any suggestion about who is to initiate, complete or distribute No Contact Orders or Protection Orders? Should the prosecutor do this as part of a plea bargain, the court at the time of sentencing, or should the Probation Department or Clerk initiate, complete or distribute them?

An individual initiates a Protection Order. The state initiates No Contact Order in a criminal case. A number of different parties may initiate a No Contact Order in a CHINS or Delinquency case. Indiana Code, Title 5 has dome requirements for the Clerk for the distribution of orders. See Ind. Code 5-2-9-6 (b) (2).

 

Q: Is there any conflict with a Respondent being bound by an No Contact Order in a criminal case and a Protection Order sought by the victim / petitioner for the additional relief afforded in a Protection Order?

There is no conflict.

 

Q: What is the function of the Defendant's Statement on the No Contact Orders? Who is responsible for getting the Defendant's signature? The court? The Sheriff when it is served?

The Defendant is always present in the criminal proceeding. The judge should have the defendant sign the order and give the defendant a copy of it. The defendant is served in open court. The same procedure should be used in juvenile cases.

Mutual Protection Orders Prohibited

Q: Can a judge grant Protection Orders against both the petitioner and the respondent in the same case, or must two separate cases be filed?

No. Mutual Protection Orders are prohibited under Ind. Code 34-26-5-14 (a). If both parties allege injury, they must do so by separate petitions with separate case numbers. See Ind. Code 34-26-5-2 (c). A court may issue only one (1) Protection Order for each petition and must do so by separate orders with specific findings. Ind. Code 34-26-5-14 (b).

Notice Of Extension Or Modification; Notice Of Termination

Q: Whose responsibility is it to file the Notice of Extension or Modification or Notice of Termination in criminal and/or juvenile No Contact Order cases?

It is the responsibility of the initiating party to file the Notice of Extension or Modification or Notice of Termination. See Ind. Code 5-2-9-6 (e) and (f).

Grandfather Provisions For Protection Orders Under Old Statute

Q: Are Protective Orders entered before July 1 still effective under the new law?

Yes. House Enrolled Act 1232, Section 70 provides that a Protective Order issued before July 1, 2002 remains in effect for the period indicated in the order granting the protective order.

 

Q: An emergency protective order is obtained before July 1 and a full hearing is scheduled after July 1. After July 1, what forms and procedures should be used for permanent Protection Orders?

The new forms and procedures should apply to any person seeking an extension or modification of an order issued before July 1, 2002. It is unclear what should happen if the petition was filed to begin a proceeding, but no order was issued until after July 1. The committee recommends the new forms and procedures of the act be used.

 

Q: What if a neighbor gets an emergency protective order before July 1 with a full hearing scheduled after July 1 - but the new law does not permit a relief for this type of dispute? Can relief be granted based on the law in effect when the emergency order was entered?

It is unclear under present law.

Retention Schedules

Q: Protection Orders are now effective two (2) years unless otherwise ordered by the judge. Will the retention schedule concerning Protection Order cases be amended to reflect this change?

Yes. Administrative Rule 91-1.1-61 will be changed to reflect the new time frame Protection Orders can remain in effect.

Q: Will a new retention schedule be created for Workplace Violence Restraining Orders?

Yes.

Workplace Violence Restraining Orders

Q: Will a new case type be created for Workplace Violence Restraining Orders?

The Protective Order Committee has recommended a new case number be created for Workplace Violence Restraining Orders in order to count them as separate and distinct from Protection Orders. Before the new case type is created, please use the Civil Miscellaneous (MI) case type designation for them.

 

Q: When a corporation seeks a workplace violence restraining order (WVRO), what rules should govern the corporation's representation in court?

The rules that govern the corporation's representation before a particular court should apply. For example, if a corporation seeks a WVRO in a small claims court, then the small claims rules for representation by corporations should apply.

 

If you have any questions about filing fees, eligibility for a protective order
 or any other questions, please contact the Porter County Clerk's Office at :

16 E Lincolnway Suite 217, Valparaiso, IN 46383 (219) 465-3450

North County Complex, 3560 Willowcreek Road Portage, IN 46368 (219) 759-8211

 

The Caring Place (219) 464-0840 Extension #103

 

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