Alaska: Restraining Orders

Restraining Orders

Restraining Orders
1. Introduction
  
  Victims of nonconsensual online publication of sexually explicit material may be able to obtain a restraining order that prohibits the perpetrator from continuing to harass the victim online. In Alaska, a victim can petition for a stalking or sexual assault protective order or a domestic violence protective order. A victim seeking a domestic violence protective order must be trying to restrain a “household member,” while a victim seeking a stalking or sexual assault protective order need not have any relationship to the defendant. A “household member” is generally defined as someone with whom the victim lives or lived, with whom the victim has or had a sexual relationship or dated for any period of time.
2. Text of Statutes
  
  AS § 18.66.100 - Protective orders: eligible petitioners; relief
  
  (a) A person who is or has been a victim of a crime involving domestic violence may file a petition in the district or superior court for a protective order against a household member. A parent, guardian, or other representative appointed by the court under this section may file a petition for a protective order on behalf of a minor. The court may appoint a guardian ad litem or attorney to represent the minor. Notwithstanding AS 25.24.310 or this section, the office of public advocacy may not be appointed as a guardian ad litem or attorney for a minor in a petition filed under this section unless the petition has been filed on behalf of the minor.
  
  (b) When a petition for a protective order is filed, the court shall schedule a hearing and provide at least 10 days' notice to the respondent of the hearing and of the respondent's right to appear and be heard, either in person or by an attorney. If the court finds by a preponderance of evidence that the respondent has committed a crime involving domestic violence against the petitioner, regardless of whether the respondent appears at the hearing, the court may order any relief available under (c) of this section. The provisions of a protective order issued under
  - (1) (c)(1) of this section are effective until further order of the court;
  - (2) (c)(2) - (16) of this section are effective for one year unless earlier dissolved by court order.
  (c) A protective order under this section may
  - (1) prohibit the respondent from threatening to commit or committing domestic violence, stalking, or harassment;
  - (2) prohibit the respondent from telephoning, contacting, or otherwise communicating directly or indirectly with the petitioner;
  - (3) remove and exclude the respondent from the residence of the petitioner, regardless of ownership of the residence;
  - (4) direct the respondent to stay away from the residence, school, or place of employment of the petitioner or any specified place frequented by the petitioner or any designated household member;
  - (5) prohibit the respondent from entering a propelled vehicle in the possession of or occupied by the petitioner;
  - (6) prohibit the respondent from using or possessing a deadly weapon if the court finds the respondent was in the actual possession of or used a weapon during the commission of domestic violence;
  - (7) direct the respondent to surrender any firearm owned or possessed by the respondent if the court finds that the respondent was in the actual possession of or used a firearm during the commission of the domestic violence;
  - (8) request a peace officer to accompany the petitioner to the petitioner's residence to ensure that the petitioner
    - (A) safely obtains possession of the petitioner's residence, vehicle, or personal items; and
    - (B) is able to safely remove a vehicle or personal items from the petitioner's residence;
  - (9) award temporary custody of a minor child to the petitioner and may arrange for visitation with a minor child if the safety of the child and the petitioner can be protected; if visitation is allowed, the court may order visitation under the conditions provided in AS 25.20.061;
  - (10) give the petitioner possession and use of a vehicle and other essential personal items, including a pet, regardless of ownership of the items;
  - (11) prohibit the respondent from consuming controlled substances;
  - (12) require the respondent to pay support for the petitioner, a minor child in the care of the petitioner, or a pet in the care of the petitioner if there is an independent legal obligation of the respondent to support the petitioner, child, or pet;
  - (13) require the respondent to reimburse the petitioner or other person for expenses associated with the domestic violence, including medical expenses, counseling, shelter, and repair or replacement of damaged property;
  - (14) require the respondent to pay costs and fees incurred by the petitioner in bringing the action under this chapter;
  - (15) order the respondent, at the respondent's expense, to participate in (A) a program for the rehabilitation of perpetrators of domestic violence that meets the standards set by, and that is approved by, the Department of Corrections under AS 44.28.020(b), or (B) treatment for the abuse of alcohol or controlled substances, or both; a protective order under this section may not require a respondent to participate in a program for the rehabilitation of perpetrators of domestic violence unless the program meets the standards set by, and that is approved by, the Department of Corrections under AS 44.28.020(b);
  - (16) order other relief the court determines necessary to protect the petitioner or any household member.
  (d) If the court issues a protective order under this section, it shall
  - (1) make reasonable efforts to ensure that the order is understood by the petitioner and by the respondent, if present; and
  - (2) have the order delivered to the appropriate local law enforcement agency for expedited service and for entry into the central registry of protective orders under AS 18.65.540.
  (e) A court may not deny a petition for a protective order under this section solely because of a lapse of time between an act of domestic violence and the filing of the petition.
  
  AS § 18.66.110 - Ex parte and emergency protective orders
  
  AS § 18.66.120 - Modification of Protective Orders
  
  AS § 18.66.990 - Definitions
  
  AS § 18.65.850 - Protective orders for stalking and sexual assault
  
  AS § 18.65.870 - Definitions
3. Cases
  1. Adam M. v. Christina B., No. S-14569, 2013 WL 2490423 (Alaska June 5, 2013).
    - Procedural Posture: Defendant appealed lower court’s grant of long-term domestic violence protective order.
    - Law: Protective Orders & Child Custody
    - Facts: Plaintiff sought a divorce, custody, child support, and tort damages after she left defendant following an altercation with defendant.¹ While the matter was pending, the parties sought protective orders against one another.² Defendant had insufficient evidence to support his allegations.³ Plaintiff was granted an ex parte protective order and later a long-term protective order based on defendant’s domestic violence, assault or reckless endangerment, harassment, stalking, and terroristic threatening.⁴ Specifically, the court found that he “committed harassment in the second degree when he sent [plaintiff] text messages about a past sexual encounter and a text message requesting one last 24 hours as a family with the implication that the end result would be a murder suicide,” and “committed internet stalking by posting pictures on the internet showing a simulated murder of an unfaithful woman intended to send a message about [his] desire to remain in control.”⁵
    - Outcome: The Alaska Supreme Court affirmed the district court’s granting of a long-term protective order.
  2. Faye H. v. James B., 348 P.3d 876 (Alaska 2015).
    - Procedural Posture: Plaintiff
    - Law: Protective Orders & Child Custody
    - Facts: Plaintiff was awarded equal physical custody and sole legal custody. Plaintiff also secured a long-term protective order against defendant.⁶ Although certain types of domestic violence trigger a rebuttable presumption against custody and visitation, the court found that while abuse occurred, defendant did not have a “history of perpetrating domestic violence” to trigger the presumption.⁷ Plaintiff alleged that defendant had access to plaintiffs emails and text messages, including nude photos that plaintiff did not send to defendant.⁸ The court made no factual findings as to whether defendant’s access to plaintiff’s digital media constituted a crime involving domestic violence.⁹ Plaintiff appealed, arguing that the instances of domestic violence in the past should trigger the presumption and prevent the defendant from visitation or custody.
    - Outcome: The Alaska Supreme Court remanded the case, and ordered the lower court to consider whether defendant’s “acquisition of [plaintiff]’s digital media” constituted a crime involving domestic violence, and thus might indicate a “history” that triggered the presumption.¹⁰
4. Practice Pointers
  - A victim who seeks a long-term protective order must participate in an evidentiary hearing where the victim and perpetrator are able to present evidence.
  - The victim should present all available evidence that might establish a history of domestic violence, including abuse of digital media.
1. 2013 WL 2490423, at *2-3. ↩
2. Id. ↩
3. Id. at *3. ↩
4. Id. ↩
5. Id. at *4, n.2. ↩
6. Id. at 877. ↩
7. Id. ↩
8. Id. at 880. ↩
9. Id. ↩
10. Id. at 880-81. ↩
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Alaska: Restraining Orders

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Restraining Orders