SEMINAR IN FAMILY VIOLENCE
ADULT PROTECTIVE ORDERS
STATUTORY ANALYSIS
GLESNER FINES 2008
1.
Behaviors:
Consider the following applications for protective orders in light of the definition of
abuse under 455.010(1). Which of these would qualify for protection under the
act?
2.

Respondent has been hiding petitioner’s insulin, resulting in petitioner
going to the hospital. Petitioner fears future health threats.

Respondent has confiscated petitioner’s cell phone, taken out the land line
at the home, prohibits petitioner’s attendance at church events and on one
occasion locked petitioner in the bathroom all day.

Respondent comes home drunk in the middle of the night, wakes up
petitioner and screams obscenities at her (though there are no threats of
physical harm) for most of the night, making it difficult for her to go to
work the next day. Petitioner needs to get some sleep.

Respondent went to jail for assault upon petitioner. Respondent was
sentenced to six months in jail. Petitioner fears he will be released without
her knowing and wants protection.

Respondent is 72 years old and Petitioner is 62 years old. Petitioner filed
petitions for order of protection and dissolution simultaneously, alleging
one incident of violence and one verbal threat of violence with the latest
incident occurring 2 to 2.5 months before the filing of the petitions.

Petitioner appeared univited on respondent's porch to retrieve financial
information regarding their former jointly owned business. Respondent
told petitioner to leave and when petitioner insisted on staying, respondent
threw petitioner off the porch, causing extensive bruising and a strained
wrist.

Respondent beat petitioner in front of their two children, ages 4 and 7,
breaking her arm. Petitioner states that she isn’t afraid for herself
because she believes she can “take care of herself” but she doesn’t want
the children witnesses any further violence.
Harassment
What is substantial emotional distress? Which of the following characterizations
constitutes the minimum requirement for substantial emotional distress? (to
research this question see Wallace v. Van Pelt, 969 S.W.2d 380 (Mo. App. 1998))


Emotional distress precipitated by conduct which is outrageous in character
and extreme in degree?
Strong, generalized feeling with both psychical and physical manifestations?

Higher level of emotional distress than routinely experienced in daily life but
not so severe as to be unendurable by the average person?
What is a course of conduct? Respondent came to the workplace and disrupted
petitioner’s work, so that petitioner needed to leave work. Petitioner’s employer
told her that if respondent ever comes back, petitioner will lose her job.
3.
Relationships:
Consider 455.020 and the definition of family or household member under
455.010, which of the following persons would be eligible to obtain a protective
order? (assume all cases involve physical violence and all parties are over age 18)

Ex-wife seeks protective order against ex-husband.

College roommate seeks protective order against roommate.

Mother of child seeks protective order against child’s father, with whom
Mother has never lived.

Male petitioner seeks protective order against male respondent with whom
he has a romantic relationship but they have not resided together..

Grandmother seeks protective order against grandson, who has never
lived with grandmother.
Consider
4.
Age:
Consider RSMo 455.020; 455.010(6) 455.501
A.
May a court ever issue an order of protection on behalf of someone
under the age of 18?
B.
May a court ever issue an order of protection against someone under
the age of 18?
5.
Jurisdiction:
Does the 16th Judicial Circuit Court have jurisdiction if:

Petitioner is a Jackson County, Missouri resident; Respondent is a resident
of Clay County, Missouri. The acts of abuse occurred in Jackson county.

Petitioner is a Jackson County, Missouri resident; Respondent is a resident
of Johnson County Kansas. The acts of abuse occurred in Jackson county.
Beckers v. Seck, 14 S.W.3d 139 (Mo App WD 2000)

Petitioner and Respondent are both residents of Clay County, Missouri, but
petitioner is temporarily living with a relative in Jackson County, Missouri.
The acts of abuse occurred in Clay County and Respondent is threatening
petitioner with further abuse by phoning her in Jackson County (see
455.032)

Petitioner obtained an order of protection against Respondent in Kansas.
Is that order enforceable in Missouri? What must she do to insure its
enforceability? (See 455.067)

6.
Petitioner obtained an order of protection in Jackson County Missouri,
where both she and respondent were residents. Both parties have since
moved. Does the Jackson County court retain jurisdiction to modify or
enforce this order? (See 455.090)
Procedure
Which of the following procedural steps are necessary to obtain an ex parte order of
protection may be issue? See § 455.027, 455. 035






File a verified petition
Pay the filing fee
Serve the defendant with the petition
Attempt to give defendant informal notice
Appear before the court for a hearing
Post a bond
Can one obtain a protective order on weekends or after normal business hours?
How? (455.030)
7.
8.
Ex Parte v. Full Orders of Protection

What are the elements of a prima facie case for an ex parte protective
order? How does that differ from the elements for a full order of
protection? (See 455.035 and 455.040)

If a court denied an ex parte order of protection, may a petitioner still
obtain a full order of protection?

If a court grants an ex parte order of protection, it must set a hearing on a
full order of protection within 15 days. What is the effect of the court’s
setting the hearing date later than 15 days without having made a finding
of good cause for a continuance? Jenkins v. Croft, 63 S.W.3d 710 (Mo. App
SD 2002)
Mutual orders
Under what circumstances, if at all, may a court issue mutual orders of
protection? See 455.050
8.
Service of Process
See 455.040 and 455.085

How is a respondent given notice of an ex parte petition?

How is a respondent given notice of an ex parte order?

If respondent is not served with an ex parte order of protection, can he
be found in violation of that order? State of Missouri v. Gentry 936 SW2d
790 (1996)

May the court order a full order of protection without service upon
respondent?

Who else should be given copies of an order of protection?

Why are service of process issues one of the most difficult barriers to
obtaining protection orders?
9.
Duration

When does an ex parte protective order take effect and how long does it
last?

When does a full order of protection take effect and how long does it last?
10.
Remedies in general
See 455.045 and 455.050


11.
Orders concerning child custody and visitation




12.
In a full order of protection, may a court order child custody if there is a prior
custody order in place?
What if custody is not resolved but the issue is pending in another
proceeding filed before the petition for the order of protection?
If there is a current custody and visitation order in place, may a court order
different visitation arrangements under a full order of protection?
Suppose there is no custody order pending or in place when the court
issues an order of protection. What if another court subsequently issues a
custody order?
Orders concerning property

May a respondent be restrained from entering a dwelling unit that he owns
but the petitioner does not?

When, if ever, will the court order a respondent to continue to pay rent or
mortgage payments on a dwelling from which he or she has been
excluded?
13.
14.
Compare the relief available under an ex parte order of protection with that
available under a full order of protection. What remedies can a court order
under a full order of protection that are unavailable under an ex parte order?
Of the remedies listed, which ones do you think are most important? Most
difficult to enforce? Are there remedies you believe should be included but
are not?
Renewal of orders

How many times can orders be renewed and for how long?

What must one allege in order to have a protective order renewed?

What if you have an additional incident of violence. Can you get another
order of protection and thus extend the overall time?
Can an order be modified? How and when?
15. If a spouse obtains a protective order and then obtains a divorce,
what is the effect of the divorce judgment on the protective order?
16. What is the res judicata effect of a protective order? See RSMo
455.060.3. Cf. Walton v. Walton, (text pp. 320-323)
17. Protective orders are a statutory form of injunction. In deciding
whether to grant an injunction in other contexts, courts must balance of
hardships to the plaintiff if the injunction is not granted against the
hardship to the defendant if the injunction is granted. Is there
consideration of a “balancing of hardships” in the Missouri protective
order statute? Should there be? Cf. Muhammad v. Muhammad (text pp. 323332)
18. How does violation of an order of protection differ from violation of
any other court order?
19. How does what you have read about the effectiveness of restraining
orders affect your judgment in advising victims of domestic violence?
20. How does violation of an order of protection differ from violation of
any other court order?
21.
When is violation of an ex parte protective order a felony?
22. What additional protections does 18 U.S.C. Sec 922 (g)(8) provide
for victims of domestic violence who have obtained a protective order?
What types of protective orders would fall within the scope of this
statute?
23. VAWA (text pp. 377-82) and RSMo §455.067 provide for interstate
enforcement of protective orders. Why are such statutes necessary and
important? In what ways do these statutes fail to protect victims?