Tag: Orders of protection in Tennessee

This is an overview of the court process for an order of protection hearing in Tennessee. For a little bit of background, I have been hired to represent clients in pursuing a petition for an order of protection as well as defending clients against a petition for an order of protection. The person pursuing an order of protection is referred to as the petitioner. The person who the order of protection is against is referred to as the respondent. In Tennessee, orders of protection are granted for three (3) specific grounds. Those grounds are when the petitioner is alleging that they are the victim of domestic abuse, sexual assault, and or stalking. The statute defines domestic abuse as a person who has one of the following relationships:

Domestic abuse victim” means any person who falls within the following categories:

• (A)  Adults or minors who are current or former spouses;

• (B)  Adults or minors who live together or who have lived together;

• (C)  Adults or minors who are dating or who have dated or who have or had a sexual relationship. As used herein, “dating” and “dated” do not include fraternization between two (2) individuals in a business or social context;

• (D)  Adults or minors related by blood or adoption;

• (E)  Adults or minors who are related or were formerly related by marriage; or

• (F)  Adult or minor children of a person in a relationship that is described in subdivisions A-E. 

TCA 36-6-601(5)(A-F).  

The process is begun by any domestic abuse victim, stalking victim or sexual assault victim who has been subjected to, threatened with, or placed in fear of, domestic abuse, stalking, or sexual assault, by filing a sworn petition alleging domestic abuse, stalking, or sexual assault by the respondent. TCA 36-6-602. If a minor is the victim then a parent or guardian can sign the petition on behalf of the minor.  The petition shall be filed in the county where the respondent resides or the county in which the domestic abuse, stalking or sexual assault occurred. If the respondent is not a resident of Tennessee, the petition may be filed in the county where the petitioner resides. 

Once a petition has been filed for an order of protection there are two directions that the petition proceeds. The first path is that an ex parte order of protection or temporary order of protection is immediately put in place. The first instance that a temporary order of protection is put in place is when the respondent is arrested. A temporary order of protection shall be issued against a respondent pursuant to TCA § 36-3-605 if, at the respondent’s initial appearance following an arrest for a crime involving domestic abuse, the court finds there is probable cause to believe the respondent either:

(A)  Caused serious bodily injury to the alleged domestic abuse victim; or

(B)  Used or displayed a deadly weapon.

(2)  The alleged domestic abuse victim does not need to be present at the time the temporary order of protection is issued.

(3)  A hearing on whether the temporary order of protection should be dissolved, extended, or modified shall be held within fifteen (15) days of service of the temporary order of protection upon the respondent. The domestic abuse victim shall have the right to notice of the hearing and the right to be present at the hearing. 

(4)  The temporary order of protection may include any relief available under an ex parte order of protection issued pursuant to § 36-3-605.

The second instance a temporary order of protection is immediately put in place is through TCA §36-3-605.  Upon the filing of a petition under this part, the courts may immediately, for good cause shown, issue an ex parte order of protection. An immediate and present danger of abuse to the petitioner shall constitute good cause for purposes of this section.  Within fifteen (15) days of service of such order on the respondent under this part, a hearing shall be held, at which time the court shall either dissolve any ex parte order that has been issued, or shall, if the petitioner has proved the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence, extend the order of protection for a definite period of time, not to exceed one (1) year.  

The second path that a petition for an order of protection can follow is that the order is not immediately granted until a full hearing before the judge. After the initial filing of the petition (if not immediately granted temporarily), a hearing is set before a judge regarding the allegations of domestic abuse, sexual assault or stalking in the petition (no temporary order is in effect at that time). The judge, after hearing the proof, may decide to then grant the order of protection after the hearing or dismiss the petition. 

Once an order of protection is granted the court can protect the petitioner/victim from domestic abuse, sexual assault or stalking, but is also permitted under TCA § 36-3-606 to make various other orders of the court.   Those orders include, prohibiting the respondent from coming around the petitioner, prohibiting the respondent from threatening the petitioner, granting the petitioner the residence, directing the respondent to provide alternative housing for the petitioner when the respondent is the sole owner or lease or the residence, granting the petitioner temporary custody or establishing temporary visitation rights with regards to any minor children, directing the respondent to attend counseling, plus pay all court costs.   

Within the time the order of protection is in effect, any court of competent jurisdiction may modify the order of protection, either upon the court’s own motion or upon motion of the petitioner. If an order of protection is ordered by a court and either the petitioner or respondent files a complaint for divorce, the order of protection shall remain in effect until the court in which the divorce action lies modifies or dissolves the order. If a respondent is found to be in violation of the order, the court may extend the order of protection up to five (5) years. If a respondent is found to be in a second or subsequent violation of the order, the court may extend the order of protection up to ten (10) years.  Upon a violation of the order of protection, the court may hold the defendant in civil or criminal contempt and punish the defendant in accordance with the law. 

The petitioner is not required to bear the costs of the issuance of an order or protection. This includes the filing fees, service fees and court costs associated with the petition.  If the court, after the hearing on the petition, issues or extends an order of protection, all court costs, filing fees, litigation taxes and attorney fees shall be assessed against the respondent.  However, if the court does not issue or extend an order of protection, the court may assess all court costs, filing fees, litigation taxes and attorney fees against the petitioner if the court makes the following finding by clear and convincing evidence:

• (A)  The petitioner is not a domestic abuse victim, stalking victim or sexual assault victim and that such determination is not based on the fact that the petitioner requested that the petition be dismissed, failed to attend the hearing or incorrectly filled out the petition; and

• (B)  The petitioner knew that the allegation of domestic abuse, stalking, or sexual assault was false at the time the petition was file. 

TCA § 36-3-617.  

Another outcome of having an order of protection granted is that the respondent must turn over any firearms that they possess. The respondent is required to dispossess themselves of all firearms while the order of protection is in effect. The respondent must sign an affidavit for the court of the dispossession of firearms. 

This is an overview of the court process for an order of protection hearing in Tennessee. For a little bit of background, I have been hired to represent clients in pursuing a petition for an order of protection as well as defending clients against a petition for an order of protection. The person pursuing an order of protection is referred to as the petitioner. The person who the order of protection is against is referred to as the respondent. In Tennessee, orders of protection are granted for three (3) specific grounds. Those grounds are when the petitioner is alleging that they are the victim of domestic abuse, sexual assault, and or stalking.  The statute defines domestic abuse as a person who has one of the following relationships:

Domestic abuse victim” means any person who falls within the following categories:

• (A)  Adults or minors who are current or former spouses;

• (B)  Adults or minors who live together or who have lived together;

• (C)  Adults or minors who are dating or who have dated or who have or had a sexual relationship. As used herein, “dating” and “dated” do not include fraternization between two (2) individuals in a business or social context;

• (D)  Adults or minors related by blood or adoption;

• (E)  Adults or minors who are related or were formerly related by marriage; or

• (F)  Adult or minor children of a person in a relationship that is described in subdivisions A-E. 

TCA 36-6-601(5)(A-F). 

The process is begun by any domestic abuse victim, stalking victim or sexual assault victim who has been subjected to, threatened with, or placed in fear of, domestic abuse, stalking, or sexual assault, by filing a sworn petition alleging domestic abuse, stalking, or sexual assault by the respondent. TCA 36-6-602. If a minor is the victim then a parent or guardian can sign the petition on behalf of the minor.  The petition shall be filed in the county where the respondent resides or the county in which the domestic abuse, stalking or sexual assault occurred. If the respondent is not a resident of Tennessee, the petition may be filed in the county where the petitioner resides.

Once a petition has been filed for an order of protection there are two directions that the petition proceeds. The first path is that an ex parte order of protection or temporary order of protection is immediately put in place. The first instance that a temporary order of protection is put in place is when the respondent is arrested. A temporary order of protection shall be issued against a respondent pursuant to TCA § 36-3-605 if, at the respondent’s initial appearance following an arrest for a crime involving domestic abuse, the court finds there is probable cause to believe the respondent either:

(A)  Caused serious bodily injury to the alleged domestic abuse victim; or

(B)  Used or displayed a deadly weapon.

(2)  The alleged domestic abuse victim does not need to be present at the time the temporary order of protection is issued.

(3)  A hearing on whether the temporary order of protection should be dissolved, extended, or modified shall be held within fifteen (15) days of service of the temporary order of protection upon the respondent. The domestic abuse victim shall have the right to notice of the hearing and the right to be present at the hearing.

(4)  The temporary order of protection may include any relief available under an ex parte order of protection issued pursuant to § 36-3-605.

The second instance a temporary order of protection is immediately put in place is through TCA §36-3-605.  Upon the filing of a petition under this part, the courts may immediately, for good cause shown, issue an ex parte order of protection. An immediate and present danger of abuse to the petitioner shall constitute good cause for purposes of this section.  Within fifteen (15) days of service of such order on the respondent under this part, a hearing shall be held, at which time the court shall either dissolve any ex parte order that has been issued, or shall, if the petitioner has proved the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence, extend the order of protection for a definite period of time, not to exceed one (1) year. 

The second path that a petition for an order of protection can follow is that the order is not immediately granted until a full hearing before the judge. After the initial filing of the petition (if not immediately granted temporarily), a hearing is set before a judge regarding the allegations of domestic abuse, sexual assault or stalking in the petition (no temporary order is in effect at that time). The judge, after hearing the proof, may decide to then grant the order of protection after the hearing or dismiss the petition.

Once an order of protection is granted the court can protect the petitioner/victim from domestic abuse, sexual assault or stalking, but is also permitted under TCA § 36-3-606 to make various other orders of the court.   Those orders include, prohibiting the respondent from coming around the petitioner, prohibiting the respondent from threatening the petitioner, granting the petitioner the residence, directing the respondent to provide alternative housing for the petitioner when the respondent is the sole owner or lease or the residence, granting the petitioner temporary custody or establishing temporary visitation rights with regards to any minor children, directing the respondent to attend counseling, plus pay all court costs.   

Within the time the order of protection is in effect, any court of competent jurisdiction may modify the order of protection, either upon the court’s own motion or upon motion of the petitioner. If an order of protection is ordered by a court and either the petitioner or respondent files a complaint for divorce, the order of protection shall remain in effect until the court in which the divorce action lies modifies or dissolves the order. If a respondent is found to be in violation of the order, the court may extend the order of protection up to five (5) years. If a respondent is found to be in a second or subsequent violation of the order, the court may extend the order of protection up to ten (10) years.  Upon a violation of the order of protection, the court may hold the defendant in civil or criminal contempt and punish the defendant in accordance with the law.

The petitioner is not required to bear the costs of the issuance of an order or protection. This includes the filing fees, service fees and court costs associated with the petition.  If the court, after the hearing on the petition, issues or extends an order of protection, all court costs, filing fees, litigation taxes and attorney fees shall be assessed against the respondent.  However, if the court does not issue or extend an order of protection, the court may assess all court costs, filing fees, litigation taxes and attorney fees against the petitioner if the court makes the following finding by clear and convincing evidence:

• (A)  The petitioner is not a domestic abuse victim, stalking victim or sexual assault victim and that such determination is not based on the fact that the petitioner requested that the petition be dismissed, failed to attend the hearing or incorrectly filled out the petition; and

• (B)  The petitioner knew that the allegation of domestic abuse, stalking, or sexual assault was false at the time the petition was file.

TCA § 36-3-617. 

Another outcome of having an order of protection granted is that the respondent must turn over any firearms that they possess. The respondent is required to dispossess themselves of all firearms while the order of protection is in effect. The respondent must sign an affidavit for the court of the dispossession of firearms.