Order of Protection Leading to Being Removed From Your Home
Some people have asked the question can you be removed from your home by an Arizona order of protection. The simple answer is yes.
A judge is allowed to order the removal of the defendant from the parties’ common residence if the judge determines there is reasonable cause to believe physical harm may result if the plaintiff is not granted the exclusive use and possession of that residence.
The judge may, however, allow the defendant to return to the residence under the supervision of a police officer to retrieve his or her personal property.
A person removed from their home is entitled to request one hearing to contest the order of protection. A person removed from their home must receive a hearing within five days of the date the request for a hearing is filed with the court.
Hearing to Contest Removal From the Home
The person requesting the hearing can ask the order removing him or her from their home be removed or may request the entire Order of protection be dismissed.
On the day of your hearing to contest the Order of Protection, the person who obtained the order, referred to as the Plaintiff, will present testimony and any documentation he or she may have in an attempt to prove the allegations in the Order of Protection.
The person against who the protective order was issued then has an opportunity to present testimony and any documentation he or she may have to prove the allegations in the Order of Protection are untrue and to support his or her request to dismiss the Order of Protection.
It is important to understand what types of allegations support the issuance of a protective order in Arizona. Just because some did something that most would consider being bad behavior provides a legal justification to issue a protective order in Arizona.
The Arizona Court of Appeals in the published decision in the case of Engstrom v. McCarthy dealt with such a situation. The trial court kept an Order of Protection in place against the husband after the husband contested the Order of Protection.
In the Engstrom case, the court of appeals agreed with the trial court that the husband had done some very bad things his wife in that case. These were the same bad things that led the trial court to keep the order of protection in place after the contested hearing.
The Court of Appeals, however, overturned the trial court’s decision to keep the Order of Protection in place and, instead, dismissed the protective order against the husband on appeal.
The reasoning of the Arizona Court of Appeals is that an Order of Protection, including those that remove a person from their home, must be based on an act of domestic violence. In Arizona, acts of domestic violence are detailed in Title 13.
If the conduct complained about in a Petition for Order of Protection doesn’t meet all of the statutory requirements of one of the domestic violence statutes, a court cannot issue an Order of Protection no matter how bad or reprehensible the conduct may be.
If you have questions about if you can be removed from your home by an order of protection in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona restraining order and family law attorneys have decades of combined experience successfully representing clients in restraining order and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your restraining order or family law case around today.
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