How Is a Civil Domestic Abuse Action Started and What Happens at the Hearing?
by: Iowa Legal Aid
April 2003
A civil domestic abuse action is started by filing a petition with the Clerk of Court, asking for protection from domestic abuse. A victim can have an attorney file the petition for her. A domestic abuse victim can also file a petition herself, by using forms available from the Clerk of Court. When a victim files her own petition, that is called a "pro se petition." ("Pro Se" means a person is representing herself.) The petition is a statement which describes what type of abuse took place. It states other facts such as the type of relationship between the victim and the abuser, and whether the parties have children. Victims of domestic abuse are called "plaintiffs" in these domestic abuse proceedings, and abusers are called "defendants."
After the petition is filed with the Clerk of Court, it is reviewed by a judge. A judge decides whether to issue a temporary protective order right away, which will protect the victim from further abuse, and will keep the abuser away from her. The temporary order can also include a temporary custody order. A copy of the temporary order is given to the victim and to the sheriff's department. The abuser is served a copy of the order by the Sheriff's department. Information about the temporary protection order is also placed on a central domestic abuse registry accessible to law enforcement agencies.
The temporary order will be effective until a hearing can be held in court on the allegations made in the petition. The judge will schedule the hearing, and include the date and time of the hearing in the temporary order. The hearing must be scheduled within fifteen (15) days of filing the petition. If there is a problem with service or some other unforeseen event, it is possible that the hearing will be delayed and will not take place within fifteen days. The law says that these hearings are to take place as quickly as possible.
A domestic abuse victim who has filed her own petition for relief from domestic abuse, can proceed with her case in court without a lawyer to represent her. The Clerk of Court has a booklet which explains how to file and follow through with the case. The booklet is called How to Protect Yourself from Domestic Abuse Without a Lawyer.
A domestic abuse victim who has filed her own petition can also get help from an attorney to represent her at the hearing which will be held. Iowa Legal Aid can provide free legal representation to low-income victims of domestic abuse. Neither the income or resources of an abuser, nor inaccessible jointly-held assets are considered to determine if a victim can get free legal help from Iowa Legal Aid. Iowa Legal Aid can provide legal representation at domestic abuse hearings as well as assist victims who are not able to file their own petitions. Contact the Iowa Legal Aid office in your area if you need help with a domestic abuse action. ]
In addition to the free legal services available from Iowa Legal Aid, there are other people who may be able to help a victim with a domestic abuse action. Advocates at domestic violence shelters can assist with filing "pro se" petitions. While these advocates are not attorneys and cannot represent victims as attorneys, they can help with forms, explain the process, and also accompany people through court proceedings.
Also, county attorneys have the authority to assist domestic abuse victims in filing pro se petitions and representing the victim throughout the court proceeding. Be aware that not many county attorneys become involved in these civil cases.
What Happens at the Hearing?
Several things can happen at the hearing which is scheduled in a domestic abuse case.
- The abuser may "default." This means the abuser does not show up at the scheduled hearing. If the abuser defaults, then the judge can grant a "default judgment" in the victim's favor. This means the judge takes what the victim said in the petition as true and grants an order.
- The abuser may come to the hearing and agree to entry of an order against him. Such an agreement is called a "Protective Order by Consent Agreement." A Protective Order by Consent Agreement can include any or all of the terms listed on page 4. Both the victim and the abuser must agree to the terms. If both parties agree to a Protective Order by Consent Agreement, neither the victim nor the abuser will need to testify in court. If the victim is not represented in her domestic abuse action, it may not be possible to enter into a Protective Order by Consent Agreement.
The advantage to the victim of agreeing to a Protective Order by Consent Agreement is that she knows she will have a protection order. She does not have to have a Judge decide if there are grounds to issue an order. The advantage to an abuser is that the Judge does not make a specific finding that the Defendant has committed domestic abuse. This may effect whether the abuser is entitled to possess guns.
- The abuser can dispute the abuse. Then a hearing will be held. At the hearing, the victim must present evidence to prove she has the right to a protection order. She will have to testify and describe the abuse. This can be through her own testimony, or other types of evidence. The abuser also has the right to present evidence. Following the hearing, the judge will decide if a protection order should be granted. This order is called a "Protective Order Following Adjudication of Domestic Abuse."
A protection order issued by the judge in a domestic abuse action can be effective for up to one year. This is true whether the Order was entered because the Defendant defaulted, whether it is a Protective Order by Consent Agreement, or whether it was issued after a hearing. Copies of the protection order are served on the victim and the defendant and are given to law enforcement agencies. Also, information about the protection order is placed on the central domestic abuse registry, accessible to law enforcement agencies.
A court can extend a Protection Order for additional time if the court finds that the abuser continues to pose a threat to the safety of the victim or her immediate family. For more information about how to ask for an extension, contact a domestic violence center or a legal services office.
The Court cannot issue an order against the victim unless the abuser has also filed a petition with the court. The law specifically prohibits mutual restraining orders.
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