Legal Question in Criminal Law in Minnesota

I was served an ExParte Order for Protection. My ex-girlfriend alleges previous domestic abuse, harassment and threats. She did get hurt by accident when she initiated fight but she states a broken Jaw! She was ok a little later and never sought medical attention or talked to law enforcement. This is blown all out of proportion. We just broke up last week when she came over with hickeys all over and I told her to get out. She has a new boyfriend and he's the one who has been threatening me and taunting me to fight, which we haven't. I was driving home (we live in a SMALL community) and we live basically on the same street. I drove by her house and this guy jumps in the middle of the road, arms up in the air, takes his shirt off and is yelling at me. I yelled for him to get a retraining order, because thats what my girlfriend had said she was going to do when I went to get my stuff. That's when her mother called the cops and told them that I said I was going to kill my ex, which I did not say! They weren't even outside at the time, and conveniently when the cop arrived the boyfriend was gone and they never mentioned him. When the cop came to talk to me I told him what happened and he looked at me and asked who the boyfriend was and hadn't even talked to him. She claimed we had broken up 3 weeks ago which is also not true. She claims I am following her - again untrue. We have the same friends and a small town. The OFP says there isn't going to be a hearing but I can request one. Should I? Also, can local law enforcement press charges for the things she alleges in the OFP? Please help because I have to request this hearing by Monday 09-14. Her mother hates me and backs up what the ex is alleging and so does her sister. That's what the cop told me, "they said you were going to kill her - all 3 of them, you mean to tell me 3 people say this and you tell me a completely different story and I am supposed to believe you? That's a Felony" Please help

Asked on 9/11/09, 12:06 pm

2 Answers from Attorneys

Maury Beaulier612.240.8005 Minnesota Lawyers

Allegations of domestic abuse may have both civil and criminal consequences. In the civil context, an allegation of abuse may result in domestic abuse restraining orders, often called “Protective Orders.” They may also have a criminal context related to assault or battery.

The significance of a judicial finding that domestic abuse has occurred is profound. In the context of criminal cases, incarceration or fines may be imposed and “no contact” orders entered which may include requiring the perpetrator to vacate the family residence or to have no contact between a parent and their children. In the civil context, including divorce and custody proceedings, the consequences are equally severe:

*Presumption for Custody. Most states carry a statutory presumption that in the event domestic abuse has occurred, the perpetrator of that abuse should not be awarded physical placement or physical custody.

*No Mediation of Disputes. It is also often presumed that where domestic abuse has occurred, mediation for family law disputes should not be required.

* Restraints on Abusive Behavior. A domestic abuse restraining order will include a restraint precluding the defendant from committing any acts of domestic abuse against the victim.

* No Contact & Criminal Violation. Where domestic abuse has been found to occur, the Court will enter a restraining order prohibiting that person from contacting the victim directly or indirectly, whether through letters, e-mail, phone calls or messages through third parties. Any violation of those restraining provisions, regardless of whether the contact is initiated by the victim or not, is a criminal violation which may result in incarceration;

* Exclusive Use of Home. As a corollary to the no contact provisions of a domestic abuse restraining order, eth defendant is also often excluded from the family residence including any property within that residence regardless of whether the residence or household is jointly or solely owned or leased by the parties. Often the order will make allowances for law enforcement officer to accompany a party to the residence to supervise the removal of limited personal belongings.

* Parenting Issues. A domestic abuse restraining order will often also restrict the defendant’s contact with children who may have been exposed to the domestic abuse. This may result in no parenting time or supervised parenting time.

* Anger Management and Treatment. The Court may also require a defendant to participate in an anger management program, chemical dependency treatment and other therapies as a condition of normalizing contact with his children.

* Restriction of Civil Liberties. Additionally, the entry of a domestic abuse restraining order may affect other civil liberties. For example, under the federal “Brady Bill” a perpetrator of domestic abuse is precluded from owning or possessing a firearm for any purpose.

Clearly, when false allegations of abuse are made, the stakes are very high. Ironically, this is contrasted by the low burden of proof necessary for those seeking civil restraining orders involving domestic abuse and the abbreviated manner in which such hearings are generally held.

You should contact a lawyer in your area. For legal representation call 612.240.8005.

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Answered on 9/16/09, 2:44 pm

A. Michael Kuehn A. Michael Kuehn Law Firm

One additional point - as you mentioned, there is no hearing scheduled unless you request one. If you DON'T request the hearing, the Order for Protection will go into place, most likely for 1 year. Additionally, if you are not there to contest this matter, the Judge could well order you to stay a certain distance from her house. This could prove very inconvenient if you both live on the same street.

What's more, if there's an existing OFP and you're found to have violated it (e.g. she calls you and you don't immediately hang up), it's could be a misdemeanor, a gross misdemeanor, or even a felony, depending on your history.

Finally, if you do request a hearing, the Judge may ask you if you're willing to simply allow the OFP to go into place without contesting the facts. This means you don't have to admit or deny anything, but in all other respects has the same effect as if your girlfriend's allegations had been proven.

I know this advice comes a little late, since you had to request the hearing two days ago, but I hope you did request such a hearing and if so, you will strongly consider hiring competent counsel who has defended other people in your exact situation. Please feel free to call (612) 708-2075 for a free consultation if you have any other questions.

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Answered on 9/16/09, 3:19 pm

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