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Protection Order Petitions & Hearings-What to Do & What Not to Do

During my time as a law clerk for the Second Circuit in Sioux Falls, I had the opportunity to read many protection order files and to observe many protection order hearings. What struck me most about those cases is the vast number in which the parties were pro se (not represented by an attorney, but rather representing themselves). Therefore, I must begin this post by reminding people, and encouraging them, to hire an attorney to represent them in protection order cases. That being said, this entry is designed to provide guidance to attorneys and pro se litigants alike as to how to draft the most effective protection order petition possible, as well as how to handle the protection order hearing. However, I in no way mean to suggest any kind of guarantee of success. Protection order cases are intensely fact specific and depend a great deal upon the credibility of the witnesses at the hearing.

Tip #1: Keep it simple.

The judge does not need the entire life story between the parties and their families and friends. The judge does not need a transcript of conversations that you had with your family and friends about the respondent. The judge needs the facts about what occurred and when. Judges are exceedingly busy people, and typically have several protection order files to read, and several protection order hearings scheduled in a block. Therefore, it is in the best interests of a petitioner to be succinct and clear in making his/her point.

Tip #2: Use names and relationships to make the petition clear.

Use the names of the petitioner, respondent, and other individuals if it will make the petition easier to understand; if the names & relationships won't make it easier to understand, leave them out. However, do not assume that the court understands the relationships between the parties. Make sure that you explain relationships (mother, father, friend, daughter, cousin, brother, etc.) where necessary. However, do not forget tip #1 to keep it simple. If a person or relationship is not necessary to understanding the what occurred and when, leave it out.

Tip #3: If there are physical injuries, include pictures.

A picture says a thousand words. If there are bruises, cuts, stitches, etc. include pictures in the petition. The judge will look at them.

Tip #4: Read & follow instructions.

There are instructions that accompany the protection order petition. Read them and follow them. Read the questions on the petition form carefully and answer the question asked.

Tip #5: Realize that a police officer's recommendation that you file a protection order is not dispositive.

Police officers frequently recommend that individuals seek protection orders if they are fearful. Judges do not give this recommendation much, if any consideration. The recommendation is made by police officers frequently, and certainly does not mean that the elements for granting a protection order have been met.

Tip #6: Dress appropriately for the hearing.

Appropriate dress in a courtroom does not include jeans, t-shirts, tennis shoes, revealing clothing, or work attire. Parties certainly are not required to wear a suit to court, but a pair of dress pants and a button down or polo shirt for men, and a skirt/pants with a nice blouse or a dress for women are appropriate. Although a judge will hear your case impartially no matter what you wear, attire certainly is considered, even if subconsciously, in determining credibility. Do your best to look presentable in court.

Tip #7: Be on time.

Do not be late for a hearing. Showing up early for a hearing is acceptable and even encouraged. In fact, depending on how the particular circuit handles protection order cases, it may even give you an opportunity to observe the judge and the procedure for handling protection order cases.

Tip #8: Ensure that the court makes adequate findings and conclusions on the record.

The South Dakota Supreme Court decided Shroyer v. Fanning, 2010 SD 22, this year. The case makes clear that findings of fact are required, because no review is possible in the absence of adequate findings.

Tip #9: File responsive affidavits.

If you are a respondent or if you represent a respondent on a protection order, it is a good idea to file a responsive affidavit. In most cases, the judge or the judge's law clerk reads the protection order file before going on the bench for protection order hearings. It certainly does not hurt the respondent's case for the judge to hear from both sides before going on the bench. Responsive affidavits paint a vastly different picture than if the judge only has the petition to work from.

Tip #10: Be informed about protection orders.

Protection orders are granted pursuant to statute in South Dakota. Look to Chapter 25-10 for domestic abuse protection orders and Chapter 22-19A for stalking protection orders for requirements. Information regarding both domestic abuse and stalking protection orders can also be found on the South Dakota Unified Judicial System website.

Tip #11: Don't be afraid to file.

In addition to the above information, there are also resources available to assist people who are being stalked or abused. Don't be afraid to file a protection order because you are afraid to go to court or cannot afford to hire an attorney. There are resources available who are familiar with protection order procedure and can take protection order cases for low cost or no cost. Consider contacting resources such as these in Rapid City: Working Against Violence, Inc. or Sacred Circle. Consider contacting resources such as these in Sioux Falls: Children's Inn or The Compass Center. Also consider contacting an attorney to assist you.

Expungement in South Dakota

During the 2010 South Dakota legislative session, a bill (HB 1105) providing for expungement was passed and signed into law. That law has since been codified at S.D.C.L. 23A-3-26 through 23A-3-33. The law is clear that expungement, as provided for in South Dakota, merely seals records and does not actually destroy physical records. Sealing of records means that those records may only be accessed by order of the court. Individuals may seek expungement of arrests occurring at any time before or after the statutes' effective date of July 1, 2010. There is no statute of limitations on expungement of arrests.

The new law provides for expungement of arrest records after one year from the date of the arrest if the State has not filed an information or indictment. Arrest records may also be expunged at any time after an acquittal. Although not specifically addressed in the statutes, it appears that upon granting a motion for expungement, any and all court records may also expunged. I come to this conclusion, as 23A-3-32 makes clear that the purpose of the statutes is to restore "a defendant or arrested person" "to the status the person occupied before the person's arrest or indictment or information." However, guidance from the State Court Administrator, as published in the July 2010 issue of the State Bar newsletter states that, "[t]he motion and any proposed order should clearly identify the records sought to be expunged." Therefore, if an individual would also like the court records sealed, the motion must so state.

Motions for expungement are treated as civil filings, and begin a new civil case. Therefore, civil filing fees and a civil case filing statement are required. Guidance, as to how expungement motions are to be captioned, was also provided in that same issue of the State Bar newsletter. Motions for expungement are to be served upon the prosecuting attorney who prosecuted the crime or violation, or who had authority to prosecute the charge if there was no information or indictment filed.

What is truly interesting about the expungement provisions in South Dakota's law is that individuals are no longer required to disclose arrests, informations, or indictments after those records have been expunged. S.D.C.L. 23A-3-32 specifically states that, "[n]o person as to whom an order of expungement has been entered shall be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of the person's failure to recite or acknowledge the person's arrest, indictment or information, or trial in response to any inquiry made of the person for any purpose."

What is ICWA & why does it matter?

ICWA stands for the Indian Child Welfare Act. It applies to child custody proceedings, including foster care placements, termination of parental rights, pre-adoptive placement, and adoptive placement. 25 USC 1903. In essence, it applies to any and all custody determinations, except those between two parents (such as in a divorce).

The act applies only to an "Indian child," which is defined as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." Id. The federal Act was adopted in 1978 to address the "...alarmingly high percentage of Indian families [...] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and [...the] alarmingly high percentage of such children [...] placed in non-Indian foster and adoptive homes and institutions." 25 USC 1901(4).

If child custody proceedings involve an Indian child, or there is any indication that the child might meet either of the definitions of an Indian child, the rather extensive and detailed provisions of ICWA must be followed. This is key, because failure to follow certain provisions of ICWA may lead to reversal. In at least one United States Supreme Court case, Mississippi Band of Choctaw Indians v. Holyfield, 490 US 30 (1989), reversal meant that termination of parental rights and an adoption were in essence undone. Therefore, even if social workers, attorneys, parents, caregivers, the court, and other stakeholders are unfamiliar with the exact requirements of ICWA, it is essential that they at a minimum be able to recognize when and if ICWA applies.

Who I Am.

As I am new to blogging, and as my blog is based on my views of the law in South Dakota and the Black Hills, I thought that I ought to begin by telling my readers a bit about myself. Here goes.

I was born and raised in the Black Hills of South Dakota, with my parents Larry and Janel, my sister Tara, and a number of pets over the years. I attended high school and worked in Rapid City, SD until I left for college. I attended The University of South Dakota in Vermillion where I received a Bachelor of Arts degree in political science, a Master of Public Administration degree, and a Juris Doctor degree. After graduation from the U., I spent a year as a law clerk for the Second Judicial Circuit Courts in Sioux Falls, SD. I was admitted to the State Bar of South Dakota in January 2010.

I returned to the Black Hills and opened my solo law practice in Rapid City, SD in August 2010. My office is located in the Historic Feigel House in Rapid City. I practice law in the following areas: family law, simple wills and estates, criminal law, quasi criminal law, and landlord-tenant law. In my assessment, all of these areas of law deal in some capacity with the home--home life, the physical home, preparation for our home in heaven. This is why I chose the quotation from Charles Parkhurst to describe my blog: "Home interprets heaven. Home is heaven for beginners." My practice is devoted to helping people interpret heaven through the betterment of their homes.

I hope you enjoy my posts and find useful information in my blog!

Happy reading,

Tana

Areas of Practice

Juvenile Law:

- Guardian ad Litem

- Juvenile Delinquency

- Abuse and Neglect

Criminal Defense:

- DUI/DWI

- Misdemeanor

- Felony

Family Law:

- Adoption

- Name Change

- Guardianship

- Paternity

- Child Support

- Child Custody
- Divorce

Small Estate Planning:

- Wills

- Powers of Attorney

- Living Wills

- Child Care Powers of Attorney

Other:

- Expungement (South Dakota)

- Exceptional Pardon (South Dakota)
- Motion to Set Aside Conviction (Nebraska)

- Involuntary Commitment

- Mental Hold

- Habeas Corpus

- Protection Order

Attorney Profile

Tana Fye is a sole practitioner who is licensed in Nebraska and South Dakota.  She first opened her law practice in Rapid City, South Dakota after one year as a law clerk with the Second Judicial Circuit Courts in Sioux Falls, South Dakota, where she worked under ten judges and a staff attorney performing legal research and drafting decisions and opinions.  She recently relocated to Holdrege, Nebraska and reopened her law practice there.  

Tana received her Juris Doctor degree from The University of South Dakota in 2009.  While attending law school, Tana was a member of the Client Counseling & Negotiation/Alternative Dispute Resolution Board, where she competed in national arbitration and negotiation competitions, as well as won an intra-school negotiation competition.  Tana also served as secretary/treasurer for her law school class, and was involved in Delta Theta Phi, a legal honor society.  Tana earned high grades in the following courses while in law school: Remedies, Federal Jurisdiction, Conflict of Laws, Immigration Law, and Contracts I & II.  

Tana also received a Master of Public Administration degree from The University of South Dakota in 2009.  Tana earned a 4.0 grade point average in her master's program, and was awarded membership in the Pi Alpha Alpha Honor Society.  While in the master's program, Tana performed research and wrote her professional report on Qualified Expert Witnesses Under the Indian Child Welfare Act.  

Tana received her Bachelor of Arts degree in Political Science from The University of South Dakota in 2006. While an undergraduate, Tana was in the Honors Program and graduated as a University Scholar, was on the Dean's List and graduated Cum Laude, served in several leadership positions in the Student Government Association, was Involved in her sorority--Alpha Xi Delta, and performed in the University Orchestra and Chamber Orchestra.  She also received several scholarships and awards from the Farber Center, the Political Science Department, Music Department, and the University.  Tana wrote her Honors Thesis on the topic of Gender Bias in the Eight Circuit Courts.  

Tana is from the Black Hills of South Dakota, but now lives on the prairie in Holdrege, Nebraska.  She enjoys playing the cello, drag racing with her family, reading, travelling, and spending time with her fiance.  

Contact Information

Law Offices of Tana M. Fye

701 Fourth Avenue, Suite 11

Holdrege, NE 68949

605.939.0295

tanafye@gmail.com

Licensed in NE and SD

Blog on Nebraska legal issues: http://frommountainstoprairies.blogspot.com/

Blog on South Dakota legal issues: http://backintheblackhills.blogspot.com/