TWENTY QUESTIONS ON ORDERS OF PROTECTION

B. Glesner Fines

2006

For classroom use only

 

This worksheet is a guide to the Missouri Child Protection Orders Act (RS Mo §§ 455.500 to 455.538).  Please complete your answers to the worksheet and turn it in at the first training session.

 

1.      The Missouri Child Protection Orders Act is designed to provide protection for children from abuse.  Look at the definition of abuse under § 455.501(1)(a).  Would the following likely be considered abuse under the act?

a.       2-year-old boy is spanked regularly, sometimes using a belt or spatula.  Sometimes the spanking leaves marks on the child’s buttocks or legs, but the child has never required any medical attention due to the spankings.  May the court issue an order prohibiting the spankings? 

b.      9-year-old girl is taken to grandparent’s house for regular visits even though girl’s mother knows that grandpa is sexually abusing the girl.  May the court issue a order of protection against the mother for subjecting the daughter to the emotional abuse of having the father and uncle sexually abuse the child?  See,  Juvenile Officer v. Warner, 155 S.W.3d 855, 858-859 (Mo. Ct. App. W.D. 2005)

c.       Children ages two, four (twins) and six are subjected to regular threats (such as leaving the children at day care and saying “if you don’t behave yourselves, I’ll just leave you here and won’t come back”), swearing and screaming, and name-calling (“clumsy, stupid, bratty, etc.”) directed toward the children.  The children have not required any medical or psychological treatment for any trauma-related conditions. Reller v. Hamline, 895 S.W.2d 659 (Mo. App. W.D. 1995)

2.      The act also provides protection against stalking.  See § 455.501 (10)  You will note that the definition contains three elements: Purposefully and repeatedly engages (two or more incidents); Unwanted course of conduct with regard to a child (purposeless activity); and Another adult would believe that the child would suffer alarm by the conduct (reasonable person sees that child would suffer fear of physical harm).  Try out these cases for your judgment on whether they would constitute stalking under the statute:

a.       On one occasion, respondent drove by the petitioner’s house to harass the child.  Child was alarmed and continues to fear his reappearance.  Stiers v. Bernicky, 174 S.W.3d 551, 554-555 (Mo. Ct. App. W.D. 2005)

b.      child and the respondent are dating and the father has objections to his daughter repeatedly sneaking out of the house to see respondent, drinking alcohol with respondent, coming to high school events with petitioner, or taking the daughter to a tavern. Child does not fear danger and wants to continue to see respondent.  In the Interest of R.T.T v. Ringer, 26 S.W.3d 830 (Mo. Ct. App. S.D. 2000)

c.       Grandfather did not know that his grandson did not know about him (grandson had been adopted).  Grandfather waved, said hello, visited the school events, and took pictures of the grandson.  Grandson only expressed concerns upon the last picture-taking incident. Brockert v. Styler, 95 S.W.3d 187, 192 (Mo. Ct. App. W.D. 2003)

3.      Which of the following persons can bring a petition for a child order of protection? See §455.503

a.       The child’s parent or legal guardian

b.      Any person related to the child by blood, marriage or adoption

c.       Any former or present adult member of the child’s household

d.      Any person who has the child in their care, custody or control

e.       A guardian ad litem or CASA volunteer appointed by the court

f.        The juvenile officer

4.      Against whom may an order be brought on the basis of abuse? See §455.501

a.       Any adult who has abused the child

b.      Any person related to the child by blood, marriage or adoption

c.       Any former or present adult member of the child’s household

d.      Any person who has the child in their care, custody or control

5.      Against whom may an order be brought on the basis of stalking? See §455.501

a.       Any adult who has been stalking the child

b.      Any person related to the child by blood, marriage or adoption

c.       Any former or present adult member of the child’s household

d.      Any person who has the child in their care, custody or control

6.      Child orders of protection may be brought by adults on behalf of children (under age 18).  What if the person against whom protection is sought is also under age 18?  Does the law provide a remedy?

7.      In which of the following scenarios would the court have jurisdiction to issue a child order of protection?

a.       Boyfriend regularly visits and occasionally spends the night at Mother’s home.  While there he abuses children. O'Banion v. Williams, 175 S.W.3d 673 (Mo. App. W.D. 2005).

b.      Now consider that boyfriend lives with Mother, but Father has custody of the children and they are at Mother’s only on Saturdays for visitation. Chavez v. Walters, 78 S.W.3d 234 (Mo. App. W.D. 2002 Mo. App. LEXIS 1456, May 7, 2002, Submitted, July 2, 2002,

c.       Neighbor molested child.  He has not contacted child since then, but still lives next door. In re A.T.H. v. Pope,  37 S.W.3d 423 (Mo. App. S.D. 2001).

d.      Mother’s boyfriend, who lives with Mother, abused children.  Children fled to father’s home and have not returned to Mother’s home since. See   §455.505(2)

8.      Which of the following procedural steps are necessary to obtain an ex parte order of protection may be issued…  § 455.501(5); 455.504(2);

a.       File a verified petition

b.      Pay the filing fee

c.       Serve the defendant with the petition

d.      Attempt to give defendant informal notice

e.       Appear before the court for a hearing

f.        Post a bond

9.      If a court denies an ex parte order of protection, does that preclude the petitioner from seeking a full order of protection? §455.513

10.  How does the standard for an ex parte Child Order of Protection differ from that for a full order of protection?  Compare §455.513 with §455.516

a.       They do not differ.

b.      The ex parte order requires clear and convincing evidence and the full order requires only preponderance of the evidence.

c.       The ex parte requires an immediate and present danger of abuse; the full order requires only proof that abuse occurred in the past.

11.  When does an ex parte order take effect and how long does it last? §455.516

a.       Immediately upon entry of order; 10 days

b.      Upon service on the respondent; 10 days

c.       Immediately upon entry of order; 15 days

d.      Upon service on the respondent; 15 days

12.  When must the court appoint a GAL? § 455.513 (2)

a.       Immediately upon granting an ex parte order

b.      Anytime before a final hearing on a full order.

13.  Compare the relief available under an ex parte order of protection § 455.520 with that available under a full order of protection §455.523.  What remedies can a court order under a full order of protection that are unavailable under an ex parte order?

14.  455.513(1) provides that an ex parte order may not be granted if a prior order regarding custody is pending or has been made.  What about a full order of protection.  If there is a prior or pending custody order, may the court issue a full order of protection?

15.  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? §455.528

a.       The second court’s order is void because it cannot take jurisdiction to order custody while a child order of protection is in place

b.      The child protection order is vacated

c.       Only that portion of the order of protection relating to custody, visitation and support is invalidated; other prohibitions regarding abuse may remain in effect.

16.  How long do full order of protection last? §455.16

17.  How many times can they be renewed and for how long?

18.  To renew an child order, petitioner must show that the prior order has not yet expired and…

a.       Nothing more

b.      There is still danger to the child

c.       There have been additional incidents of violence since the prior order

19.  Can an order be modified? §455.28 & §455.530

a.       Yes at any time upon motion of a party

b.      Yes at any time upon motion of the petitioner

c.       Yes at any time upon motion and a showing of changed circumstances

20.  How does violation of a child order of protection differ from violation of any other court order? § 455.538

a.       Both kinds of order can be enforced only through criminal contempt actions.

b.      Violation of a child order of protection will result in arrest; a court must issue a separate warrant for the arrest of an individual for violation of other orders.

21.  If a respondent violates an order of protection, what type of criminal sanctions does he/she face? § 455.538 (4)(1)  See generally State v. Keith, 839 S.W2d 729 (Mo. Ct. App W.D. 1992).

 

 

 


MISSOURI CHILD PROTECTION ORDERS ACT


Citation of law.

 

455.500. Sections 455.500 to 455.538 shall be known and may be cited as the "Child Protection Orders Act".

Definitions.

455.501. As used in sections 455.500 to 455.538, the following terms mean:

(1) "Abuse", any physical injury, sexual abuse, or emotional abuse inflicted on a child other than by accidental means by an adult household member, or stalking of a child. Discipline including spanking, administered in a reasonable manner shall not be construed to be abuse;

(2) "Adult household member", any person eighteen years of age or older or an emancipated child who resides with the child in the same dwelling unit;

(3) "Child", any person under eighteen years of age;

(4) "Court", the circuit or associate circuit judge or a family court commissioner;

(5) "Ex parte order of protection", an order of protection issued by the court before the respondent has received notice of the petition or an opportunity to be heard on it;

(6) "Full order of protection", an order of protection issued after a hearing on the record where the respondent has received notice of the proceedings and has had an opportunity to be heard;

(7) "Order of protection", either an ex parte order of protection or a full order of protection;

(8) "Petitioner", a person authorized to file a verified petition under the provisions of sections 455.503 and 455.505;

(9) "Respondent", the adult household member, emancipated child or person stalking the child against whom a verified petition has been filed;

(10) "Stalking", when an adult purposely and repeatedly engages in an unwanted course of conduct with regard to a child that causes another adult to believe that a child would suffer alarm by the conduct. As used in this subdivision:

(a) "Course of conduct" means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or contact;

(b) "Repeated" means two or more incidents evidencing a continuity of purpose; and

(c) "Alarm" means to cause fear of danger of physical harm;

(11) "Victim", a child who is alleged to have been abused by an adult household member.

Venue--petition, who may file.

455.503. 1. A petition for an order of protection for a child shall be filed in the county where the child resides, where the alleged incident of abuse occurred, or where the respondent may be served.

2. Such petition may be filed by any of the following:

(1) A parent or guardian of the victim;

(2) A guardian ad litem or court-appointed special advocate appointed for the victim; or

(3) The juvenile officer.

Court clerks to furnish petitioners with uniform forms and information to litigants having no counsel on procedure, filing forms and pleadings--services of clerks and location of office to file petition to be posted--rules--no fees required--guardian ad litem or CASA to be provided copy of petition.

455.504. 1. The clerk of the court shall make available to the petitioner the uniform forms adopted by the supreme court pursuant to section 455.073. Except as provided in section 455.510, clerks under the supervision of a circuit clerk shall explain to litigants not represented by counsel the procedures for filing all forms and pleadings necessary for the presentation of their petition filed pursuant to the provisions of sections 455.500 to 455.538 to the court. Notice of the fact that clerks will provide such assistance shall be conspicuously posted in the clerks' offices. The location of the office where a petition can be filed shall be conspicuously posted in the court building. The performance of duties prescribed in this section shall not constitute the practice of law as defined in section 484.010, RSMo. All duties of the clerk prescribed in this section shall be performed without cost to the litigants. The supreme court may promulgate rules as necessary to govern conduct of court clerks under sections 455.500 to 455.538, and shall provide forms for petitions and written instructions on filling out all forms and pleadings necessary for the presentation of the petition to the court.

2. No filing fees, court costs, or bond shall be assessed to the petitioner in an action commenced under sections 455.500 to 455.538.

3. The clerk shall immediately notify the guardian ad litem or court-appointed special advocate of appointment and shall provide such guardian or advocate with a copy of the petition for the order of protection for the child. The clerk shall provide such guardian or advocate with the names, addresses, and telephone numbers of the parties within twenty-four hours of entry of the order appointing the guardian ad litem or court-appointed special advocate.

Relief may be sought for child abuse or child being stalked--order of protection effective, where.

455.505. 1. An order of protection for a child who has been subject to abuse by a present or former adult household member or person stalking the child may be sought under sections 455.500 to 455.538 by the filing of a verified petition alleging such abuse by the respondent.

2. A child's right to relief under sections 455.500 to 455.538 shall not be affected by his leaving the residence or household to avoid abuse.

3. Any protection order issued pursuant to sections 455.500 to 455.538 shall be effective throughout the state in all cities and counties.

Filings--information required from petitioner.

455.510. 1. When the court is unavailable after business hours or on holidays or weekends, a verified petition for protection from abuse or a motion for hearing on violation of any order of protection under sections 455.500 to 455.538 may be filed before any available court in the city or county having jurisdiction to hear the petition. An ex parte order may be granted pursuant to section 455.513.

2. All papers in connection with the filing of a petition or the granting of an ex parte order of protection or a motion for a hearing on a violation of an order of protection under this section shall be certified by such court or the clerk within the next regular business day to the circuit court having jurisdiction to hear the petition.

3. A petitioner seeking a protection order for a child shall not be required to reveal any current address or place of residence of the child except to the court in camera for the purpose of determining jurisdiction and venue. The petitioner may be required to provide a mailing address unless the petitioner alleges that the child would be endangered by such disclosure, or that other household members would be endangered by such disclosure.

Ex parte orders, issued when, effective when--for good cause shown, defined--investigation by division of family services, when--report due when, available to whom.

455.513. 1. Upon the filing of a verified petition under sections 455.500 to 455.538, for good cause shown in the petition, and upon finding that no prior order regarding custody is pending or has been made, the court may immediately issue an ex parte order of protection. An immediate and present danger of abuse to a child shall constitute good cause for purposes of this section. An ex parte order of protection entered by the court shall be in effect until the time of the hearing.

2. Upon the entry of the ex parte order of protection, the court shall enter its order appointing a guardian ad litem or court-appointed special advocate to represent the child victim.

3. If the allegations in the petition would give rise to jurisdiction under section 211.031, RSMo, the court may direct the division of family services to conduct an investigation and to provide appropriate services. The division shall submit a written investigative report to the court and to the juvenile officer within thirty days of being ordered to do so. The report shall be made available to the parties and the guardian ad litem or court-appointed special advocate.

Hearings, when, procedure, standard of proof--duration of orders--videotaped testimony permitted--renewal of orders, when--service of respondent, failure to serve not to affect validity of order--notice to law enforcement agencies.

455.516. 1. Not later than fifteen days after the filing of a petition under sections 455.500 to 455.538, a hearing shall be held unless the court deems, for good cause shown, that a continuance should be granted. At the hearing, which may be an open or a closed hearing at the discretion of the court, whichever is in the best interest of the child, if the petitioner has proved the allegation of abuse of a child by a preponderance of the evidence, the court may issue a full order of protection for at least one hundred eighty days and not more than one year. The court may allow as evidence any in camera videotape made of the testimony of the child pursuant to section 491.699, RSMo. The provisions of section 491.075, RSMo, relating to admissibility of statements of a child under the age of twelve shall apply to any hearing under the provisions of sections 455.500 to 455.538. Upon motion by either party, the guardian ad litem or the court-appointed special advocate, and after a hearing by the court, the full order of protection may be renewed for a period of time the court deems appropriate, except that the protective order shall be valid for at least one hundred eighty days and not more than one year from the expiration date of the originally issued full order of protection. If for good cause a hearing cannot be held on the motion to renew the full order of protection prior to the expiration date of the originally issued full order of protection, an ex parte order of protection may be issued until a hearing is held on the motion. Upon motion by either party, the guardian ad litem or the court appointed special advocate, and after a hearing by the court, the second full order of protection may be renewed for an additional period of time the court deems appropriate, except that the protective order shall be valid for at least one hundred eighty days and not more than one year from the expiration date of the second full order of protection. If for good cause a hearing cannot be held on the motion to renew the second full order of protection prior to the expiration date of the second order, an ex parte order of protection may be issued until a hearing is held on the motion. For purposes of this subsection, a finding by the court of a subsequent act of abuse is not required for a renewal order of protection.

2. The court shall cause a copy of the petition and notice of the date set for the hearing on such petition and any ex parte order of protection to be personally served upon the respondent by personal process server as provided by law or by any sheriff or police officer at least three days prior to such hearing. Such shall be served at the earliest time, and service of such shall take priority over service in other actions, except those of a similar emergency nature. The court shall cause a copy of any full order of protection to be served upon or mailed by certified mail to the respondent at the respondent's last known address. Failure to serve or mail a copy of the full order of protection to the respondent shall not affect the validity or enforceability of a full order of protection.

3. A copy of any order of protection granted under sections 455.500 to 455.538 shall be issued to the petitioner and to the local law enforcement agency in the jurisdiction where the petitioner resides. The clerk shall also issue a copy of any order of protection to the local law enforcement agency responsible for maintaining the Missouri uniform law enforcement system (MULES) or any other comparable law enforcement system the same day the order is granted. The law enforcement agency responsible for maintaining MULES shall enter information contained in the order for purposes of verification within twenty-four hours from the time the order is granted. A notice of expiration or of termination of any order of protection shall be issued to such local law enforcement agency and to the law enforcement agency responsible for maintaining MULES or any other comparable law enforcement system. The law enforcement agency responsible for maintaining the applicable law enforcement system shall enter such information in the system. The information contained in an order of protection may be entered in the Missouri uniform law enforcement system or comparable law enforcement system using a direct automated data transfer from the court automated system to the law enforcement system.

4. A copy of the petition and notice of the date set for the hearing on such petition and any order of protection granted pursuant to sections 455.500 to 455.538 shall be issued to the juvenile office in the jurisdiction where the petitioner resides. A notice of expiration or of termination of any order of protection shall be issued to such juvenile office.

Temporary relief available--ex parte orders.

455.520. 1. Any ex parte order of protection granted under sections 455.500 to 455.538 shall be to protect the victim from abuse and may include:

(1) Restraining the respondent from abusing, threatening to abuse, molesting or disturbing the peace of the victim;

(2) Restraining the respondent from entering the family home of the victim except as specifically authorized by the court;

(3) Restraining the respondent from having any contact with the victim, except as specifically authorized by the court;

(4) A temporary order of custody of minor children.

2. No ex parte order of protection excluding the respondent from the family home shall be issued unless the court finds that:

(1) The order is in the best interests of the child or children remaining in the home;

(2) The verified allegations of abuse present a substantial risk to the child or children unless the respondent is excluded;

(3) A remaining adult family or household member is able to care adequately for the child or children in the absence of the excluded party; and

(4) A commitment has been obtained from the local division of family services office to provide appropriate social services to the family or household members during the period of time which an order of protection is in effect.

Full order of protection--relief available.

455.523. 1. Any full order of protection granted under sections 455.500 to 455.538 shall be to protect the victim from abuse and may include:

(1) Temporarily enjoining the respondent from abusing, threatening to abuse, molesting or disturbing the peace of the victim;

(2) Temporarily enjoining the respondent from entering the family home of the victim, except as specifically authorized by the court;

(3) Temporarily enjoining the respondent from having any contact with the victim, except as specifically authorized by the court.

2. When the court has, after hearing for any full order of protection, issued an order of protection, it may, in addition:

(1) Award custody of any minor child born to or adopted by the parties when the court has jurisdiction over such child and no prior order regarding custody is pending or has been made, and the best interests of the child require such order be issued;

(2) Award visitation;

(3) Award child support in accordance with supreme court rule 88.01 and chapter 452, RSMo;

(4) Award maintenance to petitioner when petitioner and respondent are lawfully married in accordance with chapter 452, RSMo;

(5) Order respondent to make or to continue to make rent or mortgage payments on a residence occupied by the victim if the respondent is found to have a duty to support the victim or other dependent household members;

(6) Order the respondent to participate in a court-approved counseling program designed to help child abusers stop violent behavior or to treat substance abuse;

(7) Order the respondent to pay, to the extent that he or she is able, the costs of his or her treatment, together with the treatment costs incurred by the victim;

(8) Order the respondent to pay a reasonable fee for housing and other services that have been provided or that are being provided to the victim by a shelter for victims of domestic violence.

Jurisdiction for orders--compliance review hearings permitted--remedies for enforcement of orders.

455.524. 1. The court shall retain jurisdiction over the full order of protection issued under sections 455.500 to 455.538 for its entire duration. The court may schedule compliance review hearings to monitor the respondent's compliance with the order.

2. The terms of the child order of protection issued under this chapter are enforceable by all remedies available at law for the enforcement of a judgment, and the court may punish a respondent who willfully violates the child order of protection to the same extent as provided by law for contempt of the court in any suit or proceeding cognizable by the court.

Assignment of wages.

455.526. The court may order the person obligated to pay support or maintenance to make an assignment of a part of his periodic earnings or other income to the person entitled to receive the payments in accordance with chapter 452, RSMo.

Modification of orders, who may file, when--termination--order not res judicata, when.

455.528. 1. After notice to the parties and the guardian ad litem or court-appointed special advocate and hearing, the court may modify an order of protection of a child at any time, upon subsequent motion filed by either party, the guardian ad litem, or the court-appointed special advocate together with an affidavit showing a change in circumstances sufficient to warrant the modification. All full orders of protection of a child shall be final orders and appealable and shall be for a fixed period of time not to exceed one hundred eighty days except as otherwise provided herein.

2. Any order for child support, custody, temporary custody, visitation or maintenance entered under sections 455.500 to 455.538 shall terminate prior to the time fixed in the order upon the issuance of a subsequent order pursuant to chapter 452, RSMo, or any other Missouri statute.

3. No order entered pursuant to sections 455.500 to 455.538 shall be res judicata to any subsequent proceeding, including, but not limited to, any action brought under chapter 452, RSMo.

Grounds for modification of orders.

455.530. 1. Provisions of any order respecting maintenance or support may be modified only as to installments occurring subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.

2. Provisions of any order respecting custody may be modified only if the court finds, upon the basis of facts that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.

3. Provisions of any order respecting visitation may be modified when the modification would serve the best interests of the child.

Proceedings independent of others.

455.534. All proceedings under sections 455.500 to 455.538 are independent of any proceedings for dissolution of marriage, legal separation, separate maintenance and other actions between the parties and are in addition to any other available civil or criminal remedies, unless otherwise specifically provided in sections 455.500 to 455.538.

Costs of legal fees.

455.536. The court may order a respondent to pay a reasonable amount for the cost to the petitioner of maintaining any proceeding under sections 455.500 to 455.538 and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.

Law enforcement agencies response to violation of order--arrest for violation, penalties--custody to be returned to rightful party, when.

455.538. 1. When a law enforcement officer has probable cause to believe that a party, against whom a protective order for a child has been entered, has committed an act of abuse in violation of that order, he shall have the authority to arrest the respondent whether or not the violation occurred in the presence of the arresting officer.

2. When a person, against whom an order of protection for a child has been entered, fails to surrender custody of minor children to the person to whom custody was awarded in an order of protection, the law enforcement officer shall arrest the respondent, and shall turn the minor children over to the care and custody of the party to whom such care and custody was awarded.

3. The same procedures, including those designed to protect constitutional rights, shall be applied to the respondent as those applied to any individual detained in police custody.

4. (1) Violation of the terms and conditions of an ex parte order of protection with regard to abuse, child custody, or entrance upon the premises of the victim's dwelling unit, of which the respondent has notice, shall be a class A misdemeanor. Violation of the terms and conditions of a full order of protection for a child regarding abuse, child custody, or entrance upon the premises of the petitioner's dwelling unit, shall be a class A misdemeanor.

(2) For purposes of this subsection, in addition to the notice provided by actual service of the order, a party is deemed to have notice of an order of protection for a child if the law enforcement officer responding to a call of a reported incident of abuse or violation of an order of protection for a child presents a copy of the order of protection to the respondent.

5. The fact that an act by a respondent is a violation of a valid order of protection for a child shall not preclude prosecution of the respondent for other crimes arising out of the incident in which the protection order is alleged to have been violated.