DOMESTIC VIOLENCE, RESTRAINING ORDERS, & PROTECTION FROM ABUSE ATTORNEYS IN GADSDEN, ALABAMA
Domestic violence involves abuse, physical violence or harassment to any family member, spouse, child, girlfriend/boyfriend (or former) or any household member. We have all seen the statistics. One in every four women will experience domestic violence in her lifetime. One in thirty-three men will experience an attempted or completed rape. An estimated 1.3 million women are victims of physical assault by an intimate partner each year. If you are involved in a domestic violence situation, you should call law enforcement immediately. Once you and your loved ones are in a safe place, you should seek the advise of a domestic violence attorney. Whether you are the victim or a person being accused of abuse, obtaining trusted legal advice from a domestic violence attorney is a good idea. A lawyer can help protect you and your family in this situation.
Protection from Abuse (PFA) Orders in Alabama
Domestic violence attorneys Dani Bone & Sam Bone handle domestic violence / protection from abuse / restraining orders in the context of family law and criminal law. Alabama has specific domestic violence laws that provide minimum periods of incarceration for individuals found guilty of committing acts of domestic violence, and are enhanced when such crimes are committed against a spouse. In addition to pressing charges, victims of domestic violence may also seek a protection from abuse (PFA) order that can be obtained ex parte (obtained without notice to the abuser). Protection from abuse orders can place limits on contact between a victim, children and the abuser. In the event the abuser violates the order, he/she can be incarcerated. For more information about obtaining a protection from abuse (PFA) order, contact a Gadsden Protection from Abuse attorney.
HOW DO YOU FILE A PROTECTION ORDER IN ETOWAH COUNTY / GADSDEN, ALABAMA?
Click below to view a protection from abuse petition in Alabama:
Step 1: Go to court to get the petition.
As soon as possible after the abuse occurs, go to the County courthouse where you live, where the abuser lives, or where a civil case is currently pending between you and the abuser to get your petition.* If your county has a Family Court, go to the Family Court clerk (usually in the divorce division). You can obtain a petition during normal business hours, Monday through Friday at the Etowah County Judicial Building.
At the courthouse, tell the clerk of court that you want to file a petition for a protection from abuse order. If you are in immediate danger, tell the clerk you also want an emergency (ex parte) order. The clerk will give you the forms. You will also find links to forms online at our AL Download Court Formspage.
Note: Remember to bring photo ID so that you can show it to the clerk when you have to sign your petition in front of the notary. It may also be helpful to have some information about the abuser including:
- a description and plate number of the abuser's car;
- his/her history of drugs or gun ownership;
- addresses/phone numbers of the abuser's residence and employment;
- a copy of any other court papers if there is another relevant court case/order involving you and the abuser;
- the date and place of your marriage, divorce, or separation (if you are the spouse or ex-spouse of your abuser); and
- a photo (for law enforcement to identify him/her when serving the petition).
Step 2: Fill out the necessary forms and file them with the clerk.
The clerk will provide you with the forms that you need to file. Read the protection from abuse petition carefully and ask questions if you don't understand something.
On the petition, you will be the "plaintiff" and the abuser will be the "defendant." Write about the most recent incidents of violence, using descriptive language (i.e., words like "slapping," "hitting," "grabbing," "threatening," "choking," etc.) that fits your situation. Include details and dates, if possible. Be specific. You can also include some of the history of abuse and information on any previous, related court action you have taken against the abuser.
Remember to write your name and a safe mailing address and phone number. If you are staying at a shelter, give a post office box, not a street address. If the abuser does not know the locations of your residence and employment, be sure to tell the clerk you want your home, work, and other addresses to remain confidential.
If you need assistance filling out the form, ask the clerk for help. Some courts may have an advocate that can assist you. You can also call the AL Domestic Violence Hotline, 1-800-650-6522 for information on getting help with the PFA process. Another option is to find help through one of the domestic violence organizations listed on the AL Advocates and Shelters page.
Note: Once you have completed your paperwork, return them to the clerk. Be sure to wait to sign the forms in front of the court clerk, where you will have to show photo ID.
Step 3: Go in front of the judge (the ex parte hearing).
The entire file is brought before a judge for your ex parte hearing. At this hearing, the judge will read your petition and may ask you questions about why you need protection through a PFA order. Only you are present at this hearing, not the abuser (this is what is meant by "ex parte").
If the judge grants you an emergency PFA order, the court clerk should give you a copy of the order. Review the order before you leave the courthouse to make sure that the information is correct. If something is wrong or missing, ask the clerk to correct the order before you leave. Be sure to keep the order with you at all times. You may want to keep copies in your car, workplace, or daycare. The judge will also set a hearing date for your final PFA order hearing.
Step 4: Service of process
The abuser must be served with the papers that tell him/her about the hearing date (called Notice of an Application for a Protection from Abuse order), a copy of the petition that you filed, and your emergency PFA (if the judge gave you one). If you are granted an emergency PFA, the clerk of court will tell you where to go to get the papers served on the abuser. The PFA order is not effective until it is served on the abuser. There is no fee for service.*
Note: Do not attempt to serve the papers on the abuser yourself.
* Ala. Code § 30-5-5(e)
Step 5: The final PFA hearing
A judge will set a hearing date that is generally within 10 days of filing your petition.* The abuser has the right to be present for this hearing. This means you may have to face him/her in court. You must go to the hearing. If you do not go to the hearing, your emergency PFA will expire (if you were granted one), and you will have to start the process over. If you do not show up at the hearing, it may be harder for you to get a PFA in the future.
If the abuser received notice of the hearing, but does not show up, the judge may issue a "default judgment" and grant you a PFA against him/her anyway OR the judge may set a new hearing date. If you have an emergency PFA, make sure the judge extends it so that it remains effective until the date of your new hearing.
At the hearing, you will testify in court and you can present other evidence or witnesses to prove the abuse you have experienced. The abuser will also be allowed to testify in the hearing. The judge will make a decision after hearing all of the testimony and considering all of the evidence.
You have the right to bring a lawyer to represent you at the hearing. If you show up to court and you need more time to find a lawyer, or the abuser has a lawyer and you do not, you may ask the judge for a "continuance" to set a later court date so you can have time to find a lawyer for yourself. If you will be representing yourself, go to our Preparing Your Case page for tips on how to prepare yourself for court. If the court does issue a continuance, the court should also reissue or extend your emergency order (if you have one), since your original order will probably expire before the rescheduled hearing.**
* Ala. Code § 30-5-6(a)
** Ala. Code § 30-5-6(c)
What can I do if the abuser violates the protection order?
You can call the police immediately, even if you think it is a minor violation. It can be a class A misdemeanor crime* and civil "contempt of court" if the abuser violates the order in any way. The PFA order can be violated if the abuser does not follow every provision in the order. It is a good idea to write down the name of the responding officer(s) and their badge number(s) in case you want to follow up on your case.
* Ala. Code § 13A-6-142(a)
How do I change or extend my protection order?
If you want to modify (change) your protection from abuse order, you must fill out the same form, (entitled "Petition for Protection from Abuse"), as you did during your original application. Go to the nearest Circuit or Family Court clerk and tell them you want to fill out a form to change your protection from abuse order.
Often times, final PFA orders are "permanent" so there is no expiration date.* However, if your protection from abuse order has an expiration date, you can petition the court for an extension of the original order. You must apply for an extension before the original order expires. You will need to go to the Circuit or Family Court clerk to request an extension. You will probably have to fill out a petition similar to the one you filled out for the original order. Note: If you are getting a divorce, you can ask for a final protection from abuse order put into the divorce decree.
* Ala. Code § 30-5-7(d)(2)
Can I (the Victim) Drop Domestic Violence Charges in Alabama?
Dropping the Petition for Order of Protection from Domestic Abuse
It is not uncommon that a spouse immediately regrets the filing of a Petition for Protection from Abuse. For those not familiar with the term, it is basically a Temporary Restraining Order filed in a domestic relations setting.
These are often filed for very good reasons and are needed to protect one the spouses from abuse at the hands of the other spouse. On many occasions, however, they are filed for illegitimate or otherwise misguided reasons.
For instance, they may be filed in the heat of the moment. They may be filed upon the errant advice of others, some well-meaning, some not as much. They are often filed with the misguided goal of obtaining the upper hand in a divorce or child custody setting.
It is beyond dispute that these Petitions for Order of Protection are filed without good cause on a regular basis. Frequently, the party that filed will later regret having filed it and want to know how to drop the petition. The answer in domestic relations court is much different than in the criminal courts.
Let‘s start with the criminal courts first. Once a criminal charge for domestic violence is filed, it is exceedingly difficult to get the charges dropped. This is the case even if the party who called the police or filed the report does not want to pursue charges and is even willing to put it writing. Once in the criminal courts, it is strictly up to the District Attorney whether the charges will be dropped or not.
In domestic relations court, it is far simpler to drop the petition. If the parties agree and an order of dismissal is filed, the petition will be dismissed upon payment of court costs. In the alternative, if the parties do not show up for the hearing, the petition may be dismissed. There is no prosecutor to pursue the case. The case is filed by one of the spouses and it is up to that spouse either or their own or through an attorney to pursue it.
So if you filed the petition and want it dropped, how do you go about doing this? The answer is easy. The first option is to file a dismissal. In Etowah County, the judges require that both parties be present in open court to dismiss the PFA. The second option is to just not show up for the hearing. If the petitioner does not show up for the hearing, the petition may be dismissed. There are a few caveats here.
First, the Respondent (the one accused of domestic abuse) would do well to show up no matter what the petitioner says regarding his or her appearance. It is not just cynicism that suggests this. It is not unheard of for the petitioner to say that he or she will not be there when in fact they do show up. If this is the case, the respondent will be found guilty by default.
Likewise, the petitioner should be careful as well. Respondents often file counter-petition for orders of protection from domestic violence. If you filed, then you would certainly not want to drop your petition if your spouse has already filed a counter-petition.
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