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What Is An Order Of Protection In TN?

Restraining Order vs Order Of Protection

In TN, people commonly mistake a Restraining Order for an Order of Protection. They are not the same. In TN, a Restraining Order is used for business purposes in civil litigation, while an Order Of Protection is for personal protection.

Ex Parte & Temporary Orders Of Protection In Tennessee

An Ex Parte Order of Protection is sought by the Petitioner when he or she is seeking immediate relief . The victim petitions the court, and the court will grant an Ex Parte Order if good cause is shown. An immediate and present danger of abuse to the Petitioner constitutes good cause . Considerations for a showing of good cause may include the Petitioner's injuries and fear of retaliation , as well as the Respondent's history of violence , pattern of conduct, access to weapons , criminal history , proclivity to drink and do drugs , history of mental illness , and threats and attacks against the petitioner . If granted , Ex Parte Orders of Protection only last fifteen (15) days after the Respondent has been served with the order. Within that 15-day period, a hearing must be held to determine if a Temporary Order of Protection will be granted. The Respondent will be served at least five (5) days prior to that hearing. At the conclusion of the hearing , if the Petitioner has proven the allegation(s) of domestic abuse, stalking or sexual assault by a preponderance of the evidence, the court will issue a Temporary Order of Protection for a definite period of time, not to exceed one (1) year . If the petitioner has not proven the allegation(s) of domestic abuse, stalking, or sexual assault by a preponderance of the evidence, the court will dissolve the Ex Parte Order of Protection. The types of protections included in an Ex Parte Order of Protection may include, but are not limited to:

Directing the Respondent to refrain from committing domestic abuse, stalking, or sexual assault, or threatening to commit domestic abuse, stalking, or sexual assault, against the Petitioner or the Petitioner's minor children;
Prohibiting the Respondent from coming about the Petitioner for any purpose, from telephoning, contacting, or otherwise communicating with the Petitioner, directly or indirectly;
Prohibiting the Respondent from stalking the Petitioner;
Directing the care, custody, or control of any animal owned, possessed, leased, kept, or held by either party or a minor residing in the household;
Directing the Respondent to immediately and temporarily vacate a residence shared with the Petitioner, pending the outcome of hearing for the Temporary Order;
Directing the Respondent to pay the Petitioner all costs, expenses, and fees pertaining to the Petitioner's breach of a lease or rental agreement for residential property if the Petitioner is a party to the lease or rental agreement and if the court finds that continuing to reside in the rented or leased premises may jeopardize the life, health, and safety of the petitioner or the petitioner's children; and
Ordering a wireless service provider to transfer the billing responsibility for and rights to the wireless telephone number or numbers to a Petitioner.

(Source:Tenn. Code Ann. § 36-3-605)

Ex Parte Order Of Protection

Considerations for a showing ofgood cause may include the Petitioner's injuries and fear of retaliation , as well as the Respondent's history of violence , pattern of conduct, access to weapons , criminal history , proclivity to drink and do drugs ,history of mental illness , and threats and attacks against the petitioner .

If granted, Ex Parte Orders of Protection only last fifteen (15) days after the Respondent has been served with the order. Within that 15-day period, a hearing must be held. The Respondent will be servedat least five (5) days prior to that hearing.

At the conclusion of the hearing, if the Petitioner has proven the allegation(s) of domestic abuse, stalking or sexual assault by a preponderance of the evidence, the court will issue a Temporary Order of Protection for a definite period of time, not to exceed one (1) year. If the petitioner has not proven the allegation(s) of domestic abuse, stalking, or sexual assault by a preponderance of the evidence, the court will dissolve the Ex Parte Order of Protection.

The types of protections included in an Ex Parte Order of Protection may include, but are not limited to:

Directing the Respondent to refrain from committing domestic abuse, stalking, or sexual assault, or threatening to commit domestic abuse, stalking, or sexual assault, against the Petitioner or the Petitioner's minor children;
Prohibiting the Respondent from coming about the Petitioner for any purpose, from telephoning, contacting, or otherwise communicating with the Petitioner, directly or indirectly;
Prohibiting the Respondent from stalking the Petitioner;
Directing the care, custody, or control of any animal owned, possessed, leased, kept, or held by either party or a minor residing in the household;
Directing the Respondent to immediately and temporarily vacate a residence shared with the Petitioner, pending a hearing on the matter;
Directing the Respondent to pay the Petitioner all costs, expenses, and fees pertaining to the Petitioner's breach of a lease or rental agreement for residential property if the Petitioner is a party to the lease or rental agreement and if the court finds that continuing to reside in the rented or leased premises may jeopardize the life, health, and safety of the petitioner or the petitioner's children; and
Ordering a wireless service provider to transfer the billing responsibility for and rights to the wireless telephone number or numbers to a Petitioner.

(Source:Tenn. Code Ann. § 36-3-605)

Temporary Order Of Protection

"Temporary" is a little misleading as there is no "permanent" Order of Protection. Both types of Orders of Protection are temporary. A Temporary Order of Protection is more serious than an Ex Parte Order of Protection. If the victim does not seek, or the court does not grant, an Ex Parte Order of Protection, the court might set a date for a Temporary Order of Protection hearing.

If the court sets a date for a Temporary Order of Protection hearing, the Respondent will be served with a copy of the petition and notice of the date set for the hearing. The Respondent will be servedat leastfive (5) days prior to the hearing date.

At the conclusion of the hearing , if the Petitioner has proven the allegation(s) ofdomestic abuse,stalking, orsexual assault by a preponderance of the evidence, thecourt will issue a Temporary Order of Protection for a definite period of time, not to exceed one (1) year. If the petitioner has not proven the allegation(s) ofdomestic abuse,stalking, orsexual assault by a preponderance of the evidence, the court will not issue any order.

(Sources:Tenn. Code Ann. § 36-3-606& Tenn. Code Ann. § 36-3-605

'Ex Parte' vs 'Temporary' Orders Of Protection | The Difference?

Ex Parte Orders of Protection are for immediate relief and can only last fifteen (15) days after the Respondent is served.Ex Parte is a way of saying only one person, which, for Orders of Protection, means that the court only hears the Petitioner's side. The Respondent does not get to defend themselves for Ex Parte Orders. That's why they can only last 15 days.

For Temporary Orders of Protection, both the Petitioner and the Respondent get a chance to be heard. The Respondent is given at least five (5) days' notice before the hearing. A Temporary Order of Protection can last up to, but not longer than, one (1) year. These Orders can also be extended as many times as the court sees fit but require a new hearing to be held for any subsequent one-year period.

The only exception to the one-year limit is if the Respondent is found to be in violation of the Order of Protection. The Respondent will be afforded a hearing to defend against any allegations that they have violated the Order. If, however, the Respondent is found to be in Violation the Order can be extended.

On the first violation of an Order of Protection , the Order can be extended up to five (5) years. On the second violation of an Order of Protection , the Order can be extended up to ten (10) years.

(Source:Tenn. Code Ann. § 36-3-605)

Who Can Get An Order Of Protection?

Under Tennessee law, these people can get an order of protection:

Domestic abuse victim (see Definition [A] below);
Sexual assault victim; and/or
Stalking victim(see Definition [B] below).

Definition [A]:

A domestic abuse victim is defined as: "adults or minors who are current or former spouses; adults or minors who live or have lived together; adults or minors who are dating or have dated or who have or had a sexual relationship; adults or minors related by blood or adoption; adults or minors who are related or were formerly related by marriage; or adult or minor children of a person in a relationship that is described above" who have been subjected to, threatened with, or placed in fear of domestic abuse.

Definition [B]:

Stalking (T.C.A. § 39-17-315 Web Search) is defined as: "a course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested." No special relationship needs to be present for a stalking Order of Protection as it does under the domestic abuse Order of Protection.

How Does Someone Get An Order Of Protection?

To obtain an Order of Protection in TN: The Petitioner for the "OP" may seek relief by filing a sworn petition alleging the abuse. Upon filing the petition for an Order of Protection:

A Judge will either grant it temporarily by signing an Ex Parte Order of Protection (the Respondent does not need to be present or even know an OP is being sought); OR
The Judge will not grant the Ex Parte Order of Protection and set the case for hearing.

Note: If the Ex Parte Order of Protection is granted, a hearing must be set within fifteen (15) days of the service of the Ex Parte Order of Protection so the Respondent can defend themself.

What All Can An Order Of Protection Do?

In Tennessee law, the scope of an Order of Protection may include, but is not limited to:

Directing the Respondent to refrain from committing abuse or threatening to commit abuse against the Petitioner or the Petitioner's minor children;
Prohibiting the Respondent from telephoning, contacting, or otherwise communicating with Petitioner, directly or indirectly;
Prohibiting the Respondent from stalking the Petitioner as defined in T.C.A. § 39-17-315 (Web Search);
Granting to the Petitioner possession of the residence or household to the exclusion of the Respondent by evicting the Respondent, by restoring possession to the Petitioner, or by both;
Directing the Respondent to provide suitable alternate housing for the Petitioner when the Respondent is the sole owner or lessee of the residence or household;
Awarding temporary custody of, or establishing temporary visitation rights with regard to, any minor children born to or adopted by the parties;
Awarding financial support to the Petitioner and such persons as the Respondent has a duty to support;
Directing the Respondent to attend available counseling programs that address violence and control issues or substance abuse problems; and
Ordering payment of attorney fees and court costs.

How To Fight An Order Of Protection

How The Petitioner Can Drop The Order of Protection

Yes, the victim can chose not to go forward with the Order of Protection. The two ways this can happen are:

The Petitioner agrees to dismiss the petition and/or
The Petitioner fails to show up for the hearing.

Unlike domestic violence crimes, an Order of Protection is a civil matter, although it is handled in criminal court. Because it is a civil matter, the Petitioner is free to dismiss the Petition without the permission of the State of Tennessee.

About The Order Of Protection Hearing

Oftentimes, Petitioners are talked into seeking an OP, either by the police or family. Many times the allegations in the OP do not meet the standard (although the standard is very low) or the offenses are simply overstated by the Petitioner.

Virtually any time a police officer responds to a domestic violence call and makes an arrest, they try to convince the "victim" to take out an OP. At the time the offense allegedly occurs, emotions are high, and the parties may speak out of anger rather than fact.

One of the most important parts to defending an OP is to identify and interview any other witnesses to the incident other than the victim or the alleged suspect. This could be a friend, family member, or even a neighbor who overhears the argument through the apartment walls. However, in many cases, the only witnesses are the alleged victim and you, and there is often little or no physical evidence.

In these cases it is often a battle of credibility between the Petitioner and you. A Petitioner with a history of repeatedly calling the police may be less credible. Each case is different, but by fully investigating the situations, the parties, and the available witnesses and evidence, many protection orders can be defended at the hearing.

Order Of Protection Consequences

The following is what happens to you if an order of protection is granted against you:

You will lose your right to possess a firearm during the term of the order.
You can be forbidden to return to your own home or ordered to provide alternative housing for the Petitioner.
You may also lose custody of or visitation rights with your children.
It is on your public record forever.
If the petitioner claims you violated the Order of Protection, you will be arrested. Aside from the Petitioner's claim, no evidence is required for the police to arrest you.
Finally, a violation of an Order of Protection is a class A misdemeanor and punishable by up to 11 months and 29 days in jail.

Order Of Protection Violations

Ex Parte Order Of Protection Violation

If the Respondent, having knowledge of, or having been served with, the Ex Parte Order of Protection, is alleged to have violated the order, the Respondent will be arrested. To be clear, the Respondent will be arrested if the Petitioner alleges that they have violated the order. No investigation or proof is required.

The Respondent will have a contempt hearing no more than ten (10) days following his or her arrest to answer for the alleged violation. For this hearing, the Petitioner will be asked to show cause why a contempt order should be issued.

If, at the conclusion of the hearing, the court finds that the order was in fact violated, the Respondent:

Will be held in civil or criminal contempt for each act of contempt, the punishment for each act being up to ten (10) days imprisonment and a fifty ($50) dollar fine; (§ 29-9-103) and
May also have to pay any support designated in the Order of Protection.
Will have to post a bond in an amount the court determines is necessary to reasonably assure the safety of the Petitioner, but it will not be less than two thousand five-hundred dollars ($2,500). (§ 36-3-610)

(Source: Tenn. Code Ann. § 36-3-611)

Temporary Order Of Protection Violation

If the Respondent is alleged to have violated the temporary order, the Respondent will be arrested. The Respondent will have a contempt hearing no more than ten (10) days following arrest to answer for the alleged violation, for which the Petitioner will be asked to show cause why a contempt order should be issued. (§ 36-3-611)

If, at the conclusion of the hearing, the court finds that the order was in fact violated, the Respondent:

May be held in civil or criminal contempt for each act of contempt, the punishment for each act being up to ten (10) days imprisonment and a fifty ($50) dollar fine; (Tenn. Code Ann. § 29-9-103)
May have to pay any support designated in the Order of Protection;
Will have to post a bond in an amount the court determines is necessary to reasonably assure the safety of the Petitioner, but it will not be less than two thousand five-hundred dollars ($2,500); (Tenn. Code Ann. § 36-3-610)
May be charged with a violation(s) of the order, including for possessing a firearm or ammunition, (Tenn. Code. Ann. § 36-3-625; § 39-17-1307) each violation being a Class A Misdemeanor, punishable by a term of imprisonment of up to 11 months and 29 days; (Tenn. Code Ann. § 39-13-113) and
May be charged criminally for the act(s), including unlawful possession of a firearm , which causes the violation . (Tenn. Code Ann. § 39-13-113;§ 36-3-612)

In addition, the court may extend the Order of Protection for up to five (5) years after the Respondent's first violation of the order, and then up to ten (10) years after the Respondent's second or subsequent violation of the order.

(Source:Tenn. Code Ann. § 36-3-605)

Get An Experienced Criminal Defense Attorney

Protection Order hearings are incredibly biased in favor of the Petitioner. The right criminal attorney is critical to achieving success. At SBL, we provide defense services for those responding to Orders of Protection or seeking an Order of Protection. Moreover, Cynthia Sherwood was Chair of the Domestic Violence Project for several years and has seen these cases from not only the Respondent's side, but has also represented Petitioners in many cases. To say the least, she knows how the Petitioner and/or his/her attorney might look at the case. If you're looking for an Order of Protection lawyer, look no further. Call SBL at (615) 873-5670 today.

Order Of Protection FAQs

Someone Has An Order Of Protection Against You And Contacts You. Can You Respond?

In TN, if someone has an Order of Protection against you and they contact you, can you respond?

Even if the victim contacts you first, any response by you is a violation of the Order of Protection. If and when the Petitioner reports your response, you will be subject to immediate arrest and the full consequences for violating an Order of Protection. Unless you also have an Order of Protection against them, a victim with an Order of Protection against you can contact you. However, this type of behavior can be grounds for you to seek a modification or dissolution of the Order of Protection.

The circumstances under which a judge will modify or dissolve an Order of Protection vary widely. If you are in a situation like this, contact us or call 615-873-5670 to discuss what can be done.

How Long Does An Order Of Protection Last In Tennessee?

How long Tennessee order of protection last?

Tennessee law allows an Order of Protection to be in effect for up to one year, but it can be extended if the order is violated. However, some judges can and sometimes do grant Orders of Protection for shorter periods depending on the case. For instance, the Court may find that a three or six-month Order of Protection is sufficient to address the harm being caused. Most judges do give the full one-year order when granting an Order of Protection. Protection orders can be extended for up to five years if a respondent violates the Order or 10 years if they violate the order a second time. The consequences for violating an order of protection are severe. An Ex Parte Order of Protection does not last nearly as long.

How long does an Ex Parte Order of Protection last in Tennessee?

Ex-Parte Orders of Protection are only granted for up to 14 days in Tennessee, at which point an Order of Protection hearing must be held to allow both parties to be heard.

Categories: Civil, Criminal, Law,

Tags: FAQ, law, no contact order, order of protection, petitioner, respondent, restraining order,

What If You Don't Show Up To Court For An Order Of Protection Hearing?

What happens when you don't show up to court for an Order of Protection hearing?

If the party seeking the Order of Protection (the Petitioner) fails to show up for the Order of Protection hearing, the Order of Protection will be dismissed. If the Respondent fails to show up, but the Petitioner is there, the Order of Protection typically will be granted.