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.