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Ohio: Restraining Orders

Contents

  1. Overview

  1. Overview

    1. Introduction

      According to one Ohio Supreme Court case, “[t]he Ohio Legislature has passed one of the most comprehensive … statutes authorizing Civil Protection Orders to combat domestic violence.”1 Ohio-based victims of nonconsensual online publication of sexually explicit material will likely be able to obtain an order to prohibit the perpetrator from continuing to harass the victim online.

      A civil or criminal protection order (“CPO”) is distinguishable from a “restraining order.” A domestic relations court may issue a restraining order in a divorce or legal separation case in order to protect one spouse from the other, abusive spouse. A restraining order remains in effect and enforceable as long as the parties’ divorce or legal separation case is pending, and it expires upon the termination of that divorce or legal separation. It is issued by the Ohio Domestic Relations Court to restrain one party from selling or damaging household goods, withdrawing all the money from the bank accounts, running up debts, and abusing or harassing each other. If an abuser violates the order, the protected spouse may file a motion for contempt against the violator in the same court that granted the restraining order. However, police and law enforcement officers cannot enforce restraining orders, which effectively places the burden on the protected spouse.

      In contrast, a CPO may be granted for the protection of an unmarried or married intimate partner, or the relatives of the abuser or abuser’s partner if the abuser and the victim are living together or have lived together previously. Law enforcement officers in Ohio must enforce a CPO by arresting the violator, and/or responding promptly to any report of a violation. Also, CPOs may contain additional protections through supplemental provisions that work to evict the abuser from the parties’ shared home, award temporary child custody or temporary support to the domestic violence victim, or order both parties to obtain counseling. Because the scope of the relief is broader under a CPO, victims of domestic violence are usually better off obtaining a CPO than a restraining order. Moreover, the Ohio Supreme Court has expressly held that obtaining one type of order does not preclude a court from issuing the other type.2

      A WMC victim would be able to petition for a protective order in any case in which he or she can show that he or she is being repeatedly victimized by a defendant. A violation of such an order could lead to serious penalties for the defendant.

    2. Types of Orders of Protection

      1. Temporary Protection Order (“TPO”)

        A victim of domestic violence can move a criminal court for a TPO whenever a complaint for domestic violence, felonious assault, aggravated assault, menacing by stalking, or aggravated trespass involving a family or household member has been filed.

      2. Civil (Domestic) Protection Order (“CPO”)

        A victim of domestic violence can also petition for the victim and/or his or her household/family members to obtain a CPO to prevent further domestic violence. The petitioner must allege that the abuser committed physical violence or threatened to commit physical violence against a family or household member. To obtain a CPO, a victim must file in his or her local county, after which, the court holds an ex parte hearing with the judge. If the court immediately issues a CPO, a response hearing will be held within 7-10 days, after which the judge determines whether to issue a final CPO, and, if so, the length of such CPO. A violation of a CPO is a crime.3 If a respondent violates a CPO, he or she may be arrested, jailed, and fined for failure to comply. A final CPO can remain in effect from 6 months to 5 years.

      3. Criminal Protection Order

        If the victim is not considered a household or family member under R.C. 2919.25, the victim could request a criminal protection order if any of the following charges are filed on behalf of the victim: (1) felonious assault; (2) aggravated assault; (3) assault; (4) aggravated menacing; (5) menacing by stalking; (6) menacing; and (7) aggravated trespass. If the victim is a household or family member under R.C. 2919.25, then the victim may request a criminal protection order if an offense of violence is filed on the victim’s behalf. These include, but are not limited to: (1) domestic violence; (2) felonious assault; (3) aggravated assault; (4) assault; (5) menacing by stalking; (6) aggravated trespass; (7) criminal damaging/endangering; (8) criminal mischief; (9) burglary; and (10) endangering children.4

    3. Text of the Statute(s)

      1. Violating protection order, Ohio Rev. Code § 2919.27 (link)

      2. Domestic Violence, Ohio Rev. Code § 2919.25 (link)

      3. Domestic Violence Definitions – hearings, Ohio Rev. Code § 3113.31 (link)5

    4. Cases

      1. Felton v. Felton, 679 N.E.2d 672 (Ohio 1997)

        • Procedural Posture: Discretionary review of question whether trial court was prohibited from issuing a protection order even though there was injunctive language in the parties’ pre-existing divorce decree.

        • Law: Ohio domestic violence laws

        • Facts: The parties were ending their five-year marriage. During the dissolution proceeding, the wife petitioned for a protection order under Ohio’s domestic violence statute, R.C. 3113.31. She requested that the court grant a protection order restraining her ex-husband from assaulting, harassing, threatening, or otherwise intimidating her and her children. The court issued a temporary protection order enjoining the ex-husband from approaching his ex-wife, granted her exclusive temporary custody of the kids, and set a hearing date. At a full hearing on the protection order, during which the ex-wife testified that her ex-husband’s assaults had increased and had continued post-divorce, she also provided detailed testimony about her fear of her ex-husband. Moreover, she presented witnesses to support her story. However, the court held that the testimony was insufficient to meet the preponderance of the evidence standard, and determined that the divorce decree between the parties already gave the wife an injunction prohibiting the ex-husband’s violent behavior.

        • Outcome: The court reversed and remanded to the appellate court. The court found that the injunctive language already existing in the divorce decree between the parties did not prevent the trial court from issuing a protection order as well in relevant part because the protection order offered the ex-wife greater protection from her ex-husband. Moreover, the court determined that the ex-wife was only required to prove a preponderance of the evidence to obtain a protection order, and that she had met her burden of proof.

        • Special Notes: The Ohio Supreme Court discussed the importance of providing protection to women and families affected by domestic violence: “The statute gives the trial court extensive authority to tailor the domestic violence protection order to the exact situation before it at the time, while the no-harassment provision in the dissolution decree is general in nature and application and does not take into account any changes in custody, housing, transportation, and any other household needs that may have arisen since the dissolution.”6 The court also noted the different consequences that arise from a violation of a protection order versus a violation of a divorce decree noting that the consequences for the violation of a protection order are steeper, and more likely to effectively prevent recurrence.7

    5. Practice Pointers

      • Ohio forms to obtain orders of protection are available at: http://www.supremecourt.ohio.gov/JCS/domesticViolence/protection_forms/stalkingForms/default.asp (last visited Mar. 20, 2013).

      • As noted above, in instances of domestic violence, a victim may seek to obtain both a restraining order from the domestic relations court as well as a CPO.

      • Also, note that the victim must have either lived with the abuser in the past, or the victim must currently live with the abuser. However, Ohio courts have found that the language of R.C. 2919.25 suggests that the legislature intended that the domestic violence statute protect persons cohabiting  regardless of their sex or sexual preference.8

      • A court will consider past domestic violence in its analysis, but a protection order must be based on current domestic violence.9

    1. Felton v. Felton, 679 N.E.2d 672, 680 (Ohio 1997). ↩
    2. See id. at 672. ↩
    3. See Ohio Rev. Code § 2919.27 ↩
    4. Ohio Rev. Code §§ 2919.26 and 2903.213 provide the full list of crimes for which a criminal protection order may be appropriate, including criminal endangerment, criminal mischief, burglary, aggravated trespass, assault, aggravated menacing, menacing by stalking, and menacing. ↩
    5. Certain subsections of this statute with less relevance to a WMC victim were intentionally excluded. ↩
    6. Felton, 679 N.E.2d at 675. ↩
    7. See id. at 675-76. ↩
    8. State v. Hadinger, 573 N.E.2d 1191, 1193 (Ohio Ct. App. 1991) (holding that same sex partners qualify for protection under the domestic violence statute). ↩
    9. “[W]hile the court may consider past acts to determine whether the incident at issue constitutes domestic violence, the issuance of a civil protection order cannot be based solely on previous incidents of alleged domestic violence… Rather the petition must establish by a preponderance of the evidence that an act of domestic violence occurred on the date set forth on the petition for a civil protection order.” Weber v. Weber, 2011-Ohio-2980, ¶33 (Ohio Ct. App. 2011). ↩
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