Rule 6. Rules of Procedure for Issuing Protective Orders

Court Rules | Ariz. R. Protective Order Proc. R. 6 | 2018

 A. Commencement of proceedings. -- A party shall commence an action for a protective order by filing a verified petition with the clerk of the court.

B. Priority for protective orders. -- A judicial officer shall expeditiously schedule an ex parte hearing for a protective order involving a threat to personal safety even if previously scheduled matters are interrupted.

C. Order of protection. -- The judicial officer shall conduct a separate hearing with each plaintiff who requests an Order of Protection.

1. Contents of petition. -- The petition shall allege specific acts of domestic violence and name each individual the plaintiff believes should be included as a protected person.

2. Petition verification. -- A plaintiff must sign and swear or affirm to the truth of the petition before a judicial officer or other person authorized to administer an oath.

3. Petition review. -- A judicial officer shall review the petition, any other pleadings on file, and any evidence offered by the plaintiff, including any evidence of harassment by electronic contact or communication, to determine whether there is reasonable cause to believe that the defendant may commit an act of domestic violence or has committed such an act, and whether the order requested shall be issued ex parte. See A.R.S. § 13-3602(E).

a. Reasonable cause determination.

1) In determining reasonable cause, the judicial officer shall consider specific acts of domestic violence alleged within the past year, or within a longer period of time if the court finds good cause. Periods of the defendant's absence from the state or incarceration shall not be included in calculating the one year. See A.R.S. § 13-3602(C)(3), (E)(2) & (F).

2) A separate reasonable cause determination shall be made as to the plaintiff individually, any children with whom the defendant has a legal relationship and any other person listed in the petition. If a reasonable cause determination is made for the plaintiff, a separate reasonable cause determination is not required for the children with whom the defendant has no legal relationship.

b. Relationship test.

1) The judicial officer must find that a specific relationship exists, either by statute, blood or marriage, between the plaintiff and the defendant. See A.R.S. § 13-3601(A).

2) Statutory relationships include:

a) persons who are residing or who have resided in the same household;

b) victim and defendant who have a child in common;

c) victim or defendant who is pregnant by the other party;

d) victim is a child who resides or has resided in the same household as the defendant, and

i) is related by blood to a former spouse of the defendant, or

ii) is related by blood to a person who resides, or who has resided in the same household as the defendant, or

e) victim and defendant who currently share or previously shared a romantic or sexual relationship. In determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship, the court may consider the following factors:

i) the type of relationship.

ii) the length of the relationship.

iii) the frequency of the interaction between the victim and the defendant.

iv) if the relationship has terminated, the length of time since the termination.

3) Blood relationships include victim related to the defendant or the defendant's spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister.

4) Marriage relationships include:

a) victim and defendant who are either married or who have been previously married; and

b) victim who is related to the defendant or the defendant's spouse by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law, or sister-in-law. See A.R.S. § 13-3601(A).

5) The relationship test is also met when a plaintiff acts on behalf of a victim if any of the following apply:

a) the plaintiff is the parent, legal guardian or person who has legal custody of a minor or incapacitated person who is a victim, unless the court determines otherwise; or

b) the victim is either temporarily or permanently unable to request an order. See A.R.S. § 13-3602(A).

4. Additional review for limited jurisdiction courts. -- The court shall inquire of the plaintiff whether a family law action is pending in the superior court and determine whether the court has jurisdiction pursuant to Rule 4(A).

5. Issuance of order of protection. -- An Order of Protection shall be issued ex parte if the judicial officer finds reasonable cause to do so as set forth in paragraph 3 above. At the initial ex parte hearing, the plaintiff or appropriate third party shall be provided with a copy of the Order of Protection, which may include any of the following provisions:

a. No contact orders. -- The judicial officer may prohibit all contact with the plaintiff or other protected parties, except as otherwise specifically ordered in writing by the court. See A.R.S. § 12-1809(F)(2).

b. Exclusive use of residence. -- The judicial officer may grant plaintiff exclusive use of the parties' residence, if there is reasonable cause to believe that physical harm otherwise may result. See A.R.S. § 13-3602(G)(2). If the plaintiff is not the owner of the residence, the judicial officer may grant exclusive use for a limited period of time. At a contested hearing, the judicial officer may consider ownership of the parties' residence as a factor in continuing the order of exclusive use. The judicial officer may allow the defendant to return one time, accompanied by a law enforcement officer, to pick up personal belongings.

c. Prohibited locations. -- The judicial officer may also order that the defendant not go near the residence, place of employment or school of the plaintiff or other protected parties. The judicial officer may include other specifically designated location(s) in the Order. If the defendant does not know the address of these additional places, the judicial officer may, upon request of the plaintiff, leave the addresses protected. See A.R.S. § 13-3602(G)(3).

d. Firearms and ammunition.

1) The judicial officer shall ask the plaintiff about the defendant's use of or access to weapons or firearms. This inquiry shall be made to determine if the defendant poses a credible threat to the physical safety of the plaintiff or other protected persons. The judicial officer may, for the duration of the Order of Protection:

a) prohibit the defendant from possessing, purchasing or receiving firearms and ammunition; and

b) order the defendant, immediately after service of the Order of Protection, to transfer any firearm or ammunition, owned or possessed, to the appropriate law enforcement agency. See A.R.S. § 13-3602(G)(4).

2) The plaintiff reporting violations of the order to transfer firearms and ammunition shall be referred to the appropriate law enforcement agency.

e. Other relief. -- The judicial officer may grant relief that is necessary for the protection of the plaintiff and other specifically designated persons and that is proper under the circumstances.

f. Animals. -- The judicial officer may also grant the plaintiff the exclusive care, custody, or control of any animal that is owned, possessed, leased, kept, or held by the plaintiff, the defendant, or a minor child residing in the residence or household of the plaintiff or the defendant, and order the defendant to stay away from the animal and forbid the defendant from taking, transferring, encumbering, concealing, committing an act of cruelty or neglect in violation of Section 13-2910, or otherwise disposing of the animal.

6. Effectiveness of an order of protection. -- An Order of Protection is not in effect until it is served pursuant to Rule 1(L). See A.R.S. § 13-3602(D).

7. Denial of an order of protection. -- lf after the ex parte hearing the judicial officer does not have sufficient information to grant the Order of Protection, the judicial officer may deny the request or set a hearing within 10 days with reasonable notice to the defendant. The judicial officer shall document any denial of an Order of Protection. See A.R.S. § 13-3602(F).

D. Emergency orders of protection.

1. Authority to issue an emergency order of protection.

a. In counties with a population of 150,000 or more, the presiding judge of the superior court in that county shall make available on a rotating basis a judge, justice of the peace, magistrate or commissioner to issue an Emergency Order of Protection by telephone during hours that the courts are closed. See A.R.S. § 13-3624(A).

b. In counties with a population of less than 150,000, a judge, justice of the peace, magistrate or commissioner may issue an Emergency Order of Protection by telephone. See A.R.S. § 13-3624(B).

c. The availability of an Emergency Order of Protection is not affected by either party leaving the residence. See A.R.S. § 13-3624(G).

2. Emergency orders of protection issued ex parte.

a. A judicial officer may issue a written or oral order if a law enforcement officer has reasonable grounds to believe that a person is in immediate and present danger of domestic violence based on an allegation of a recent incident of actual domestic violence. See A.R.S. § 13-3624(C).

b. A judicial officer may issue a written or oral order upon the request of the alleged victim if there is a finding that a person's life or health is in imminent danger. See A.R.S. § 13-3624(F).

c. A third party may request an emergency order on behalf of a plaintiff who is either temporarily or permanently unable to make the request. The judicial officer shall determine if the third party is an appropriate requesting party for the plaintiff. See A.R.S. § 13-3624(F).

3. Issuance of an emergency order of protection. -- An Emergency Order of Protection is issued for the protection of a person in immediate and present danger of domestic violence. See A.R.S. § 13-3624. An Emergency Order of protection may:

a. Enjoin the defendant from committing an act of domestic violence.

b. Grant one party exclusive use and possession of the parties' residence if there is reasonable cause to believe physical harm may otherwise result.

c. Restrain the defendant from contacting the plaintiff or other specifically designated persons and coming near the residence, place of employment or school of the plaintiff or other designated persons, if there is reasonable cause to believe physical harm may otherwise result.

d. Prohibit the defendant from possessing or purchasing a firearm and ammunition for the duration of the order, upon a finding that the defendant may inflict bodily injury or death on the plaintiff. See A.R.S. § 13-3624(D).

4. Service of an emergency order of protection.

a. The law enforcement officer who receives verbal authorization for an Emergency Order of Protection shall complete and sign the emergency order as instructed by the judicial officer. The law enforcement officer shall then give a copy of the Emergency Order of Protection to the plaintiff or appropriate third party.

b. The law enforcement officer shall arrange for service upon the defendant. After service of the Emergency Order of Protection on the defendant, the law enforcement officer shall file a certificate of service with the court and verbally notify the sheriffs office that a judicial officer has issued an Emergency Order of Protection. See A.R.S. § 13-3624(F).

5. Duration. -- An emergency order expires at the close of the next day of judicial business following the day of issuance, unless otherwise continued by the court. See A.R.S. § 13-3624(E). A petition for an Order of Protection may be filed the following business day.

E. Injunction against harassment. -- The judicial officer shall conduct an individual hearing with each plaintiff who requests an Injunction Against Harassment.

1. Contents of petition. -- The petition shall allege a series of specific acts of harassment and the dates of occurrence. A series of acts means at least two events. See A.R.S. § 12-1809(C).

2. Petition verification. -- A plaintiff must sign and swear or affirm to the truth of the petition before a judicial officer or other person authorized to administer an oath.

3. Petition review. -- A judicial officer shall review the petition, any other pleadings on file and any evidence offered by the plaintiff, including any evidence of harassment by electronic contact or communication, to determine whether the order requested shall be issued ex parte.

4. Issuance of injunction against harassment.

a. Findings required. -- The judicial officer shall issue an Injunction Against Harassment if there is a finding of reasonable evidence of harassment of the plaintiff by the defendant during the year preceding the filing or that good cause exists to believe that great or irreparable harm would result to the plaintiff if the injunction is not granted before the defendant or the defendant's attorney can be heard in opposition. See A.R.S. § 12-1809(E).

1) If the judicial officer is going to issue the Injunction Against Harassment at the ex parte hearing, the judicial officer must find specific facts attesting to the plaintiff's efforts to give notice to the defendant or reasons supporting the plaintiff's claim that notice should not be given.

2) If the judicial officer denies issuing an Injunction Against Harassment at an ex parte hearing, the judicial officer may set a hearing within 10 days with reasonable notice to the defendant.

b. No contact orders. -- The judicial officer may prohibit all contact with the plaintiff or other protected parties, except as otherwise specifically ordered in writing by the court. See A.R.S. § 12-1809(F)(2).

c. Prohibited locations. -- The judicial officer may also order that the defendant shall not go near the residence, place of employment or school of the plaintiff or other protected parties. The judicial officer may include other specifically designated location(s) in the Injunction Against Harassment. See A.R.S. § 12-1809(F)(2).

d. Protected persons. -- The judicial officer may grant relief that is necessary for the protection of the plaintiff and other specifically designated persons and that is proper under the circumstances. See A.R.S. § 12-1809(F)(3).

e. Other relief:.

1. The judicial officer may grant relief necessary for the protection of the alleged victim and other specifically designated persons proper under the circumstances. A.R.S. § 12-1809(F)(3).

2. The judicial officer shall ask the plaintiff about the defendant's use of or access to weapons or firearms. If necessary to protect the plaintiff or other specifically designated person, the judicial officer may prohibit the defendant from possessing, purchasing or receiving firearms and ammunition for the duration of the Injunction Against Harassment.

5. Denial of an injunction against harassment. -- If after the ex parte hearing the judicial officer does not have sufficient information to grant the Order of Protection, the judicial officer may deny the request or set a hearing within 10 days with reasonable notice to the defendant. The judicial officer shall document any denial of an Order of Protection. See A.R.S. § 13-3602(F).

F. Injunction against workplace harassment. -- The judicial officer shall hold a hearing with each plaintiff/employer or authorized agent of the employer who requests an Injunction Against Workplace Harassment.

1. Contents of petition. -- The petition shall allege at least one act of harassment and the dates of occurrence. See A.R.S. § 12-1810(C)(3).

2. Petition verification. -- An employer or authorized agent must sign and swear or affirm to the truth of the petition before a judicial officer or other person authorized to administer an oath.

3. Petition review. -- A judicial officer shall review the petition, any other pleadings on file and any evidence offered by the employer or authorized agent to determine whether the Injunction requested shall be issued ex parte. See A.R.S. § 12-1810(E).

4. Issuance of injunction against workplace harassment.

a. The judicial officer shall issue an Injunction Against Workplace Harassment upon finding: 1) reasonable evidence of workplace harassment by the defendant during the year preceding the filing; or 2) good cause to believe that great or irreparable harm would result to the employer or other person who enters the employer's property or who is performing official work duties, if the injunction is not granted before the defendant or the defendant's attorney can be heard in opposition.

b. The court must find specific facts attesting to the employer's efforts to give notice to the defendant or reasons supporting the employer's claim that notice should not be given.

c. The judicial officer may prohibit all contact with the plaintiff or other protected parties, except as otherwise specifically ordered in writing by the court. See A.R.S. § 12-1809(F)(2).

d. The judicial officer may grant relief that is necessary for the protection of the employer, employees or other persons who enter the employer's property and that is proper under the circumstances.

e. If an Injunction Against Workplace Harassment is granted, the employer or authorized agent shall be provided with a conformed copy of the Injunction Against Workplace Harassment at the initial ex parte hearing.

5. Denial of an injunction against workplace harassment. -- If after the ex parte hearing the judicial officer does not have sufficient information to grant the order, the judicial officer may deny the request or set a hearing within 10 days with reasonable notice to the defendant. The judicial officer shall document any denial of an order.