Orders of protection are typically used to restrict contact between two adults who satisfy the relationship requirements of A.R.S. Section 13-3601(A). See also Rule 6(C)(3)(b), Arizona Rules of Protective Order Procedure (“ARPOP”). When a child is also at risk, however, the plaintiff may ask the court to include the child as a protected person on the order of protection. A.R.S. Section 13-3602(G)(3), ARPOP Rules 1(F), 4(B) and 6(C)(5).
Occasionally, a child may be the only victim of domestic violence. In such an instance, the child is not limited to being placed as a protected person on another person’s order of protection (typically an order obtained by one of the child’s parents). The law also allows a child to obtain his own order of protection against a parent or other defendant who meets the relationship requirements. A.R.S. Section 13-3602(A). When a minor child is in need of his own order of protection, however, his parent or guardian files for the order of protection as the plaintiff on behalf of the child. Id. A minor child may not himself file for an order of protection as the plaintiff. Id.
Orders of protection on behalf of children or which include children as protected persons are not to be used as substitutes for child custody orders. ARPOP, Rule 4(B). When a family court case is pending, many court commissioners (the judicial officers who issue orders of protection in Maricopa County) are reluctant to include children on orders of protection at all. The family court judge charged with deciding child custody and parenting time is in the best position to decide how, if at all, contact between a parent and a child should be restricted. If restrictions on parent/child contact, such as supervision, are deemed appropriate by the family court judge, she may include those restrictions in her child custody/parenting time orders. An order of protection is not needed to create such restrictions.
Unfortunately, parents in child custody cases too often abuse the order of protection process in an effort to keep the other parent away from the children. Parents often exaggerate or even fabricate allegations in order to have children included as protected persons on their orders of protection. Although an order of protection is not technically a custody order (it doesn’t specifically award physical custody to the plaintiff), an order of protection which orders that a defendant have “no contact” with his child as a protected person is certainly a de facto custody order. If a court order denies one parent from contact with children and allows the other parent contact, the court has effectively decided at least temporary custody.
In my experience, when a court commissioner issues an ex parte order of protection on behalf of a child or which includes a child as a protected person, the child is usually dropped from the order once a hearing is held at which the defendant is able to appear and defend himself. Adding the child as a protected person to the initial order of protection typically only serves to increase the animosity between the parties and to make settlement less likely. Unless a child is in genuine danger, it is generally best to leave the child off the order of protection and let the family court judge deal with the child custody and parenting time issues following a hearing at which both parties have a reasonable opportunity to present their evidence.
Copyright © 2012 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.