KALISPEL TRIBE OF INDIANS

Transcription

1 KALISPEL TRIBE OF INDIANS EXPARTE TEMPORARY ORDER FOR PROTECTION Where an application under this section alleges that irreparable injury could result from domestic violence if an order is not issued immediately without prior notice to the respondent, the court may grant by telephone an ex parte temporary order for protection, pending a full hearing, and grant relief as the court deems proper, including an order: (1) Restraining any party from committing acts of domestic violence; (2) Excluding any party from the dwelling shared or from the residence of the other until further order of the court; (3) Restraining any party from interfering with the other s custody of the minor children or from removing the children from the jurisdiction of the court; and (4) Prohibit contact between the parties.

2 HEARING - SERVICE - TIME Upon issuance of an ex parte emergency order, or receipt of the petition the court shall order a hearing which shall be held not later than fourteen days from the date of the order or receipt of the petition. Personal service shall be made upon the respondent not less than five court days prior to the hearing. If timely service cannot be made, the court may set a new hearing date. If personal service cannot be made after reasonable efforts, the Court may allow another form of service such as service by certified mail with return receipt requested, posting, or publication ORDER OF PROTECTION - TEMPORARY & PERMANENT (1) Upon notice and after hearing, the Court may make an order of protection binding on either petitioner or respondent, based on the Court's determination of which party is found to be the victim and which party is found to be the abuser, or both. The order may: (A) Restrain a party from committing domestic violence; (B) Restrain a party from having contact, including physical, verbal, written, and telephone contact, with any person(s) specified by the Court. (C) Exclude any party from the dwelling shared or from the residence of the other, the workplace, school of petitioner or from the day care or school of the child(ren) until further order of the Court; (D) Award temporary physical and/or legal custody and establish temporary visitation regarding minor children of the parties and restrain any interference with child custody; (E) Order the abuser and/or any victim to participate in treatment or counseling; (F) Order a law enforcement officer to accompany a party and assist in executing the order of protection; (G) Assess costs against the abuser, including filing fees, court costs, and costs of service. (H) Order distribution and use of the parties and the minor children s personal possessions, household furnishings, vehicles, and other personal property; (I) Length of duration of the order, not to exceed one year for permanent orders of protection; (J) Require respondent to submit to electronic monitoring; (K) Whether respondent was served personally, by publication or by mail; and (L) Each protection order shall state in bold the following:

3 WARNINGS TO THE RESPONDENT: Violation of the provisions of this order with actual notice of its terms is a criminal offense under the Kalispel Law and Order Code and will subject a violator to arrest. Any assault that is a violation of this order and that does not amount to assault under the Kalispel Law and Order Code is a criminal offense. Any conduct in violation of this order that is reckless and creates a substantial risk of death or serious risk of death or serious physical injury to another person is a criminal offense YOU CAN BE ARRESTED EVEN IF THE PERSON OR PERSONS WHO OBTAINED THE ORDER INVITES OR ALLOWS YOU TO VIOLATE THE ORDER S PROHIBITIONS. You have the sole responsibility to avoid or refrain from violating the order s provisions. Only the court can change the order upon written application. (2) Any relief granted by the order for protection, other than a judgment for costs, shall be for a fixed period not to exceed one year EMERGENCY ORDERS OF PROTECTION (1) Where a petition alleges that irreparable injury could result from domestic violence if an order is not issued immediately, without prior notice to the respondent, the Court may grant an emergency order for protection, pending a full hearing and grant relief as the Court deems proper. Telephone and facsimile (fax) orders are hereby authorized. A telephone order shall be followed with a written order from the judge, either mailed or faxed within three (3) working days from the date of the telephone order. The order may: (A) Restrain any party from committing acts of domestic violence; (B) Restrain any party from having contact with any person(s) specified by the Court; (C) Exclude any party from the dwelling shared or from the residence of the other workplace, school of other or from the day care or school of the child(ren) until further order of the Court; (D) Restrain any party from interfering with the other's custody of minor children or from removing the child(ren) from the jurisdiction of the Court; and (E) Order distribution and use of the parties and the minor children s personal possessions, household furnishings, vehicles, and other personal property. (F) Must state the following:

4 EACH ORDER SHALL STATE: WARNINGS TO THE RESPONDENT: Violation of the provisions of this order with actual notice of its terms is a criminal offense under the Kalispel Law and Order Code and will subject a violator to arrest. Any assault that is a violation of this order and that does not amount to assault under the Kalispel Law and Order Code is a criminal offense. Any conduct in violation of this order that is reckless and creates a substantial risk of death or serious risk of death or serious physical injury to another person is a criminal offense YOU CAN BE ARRESTED EVEN IF THE PERSON OR PERSONS WHO OBTAINED THE ORDER INVITE OR ALLOW YOU TO VIOLATE THE ORDER S PROHIBITIONS. You have the sole responsibility to avoid or refrain from violating the order s provisions. Only the court can change the order upon written application. (2) Irreparable injury under this section includes but is not limited to situations in which the respondent has recently threatened petitioner with bodily injury or has engaged in acts of domestic violence against the petitioner. (3) The court shall hold an ex parte hearing in person or by telephone on the day the petition is filed or on the following judicial day. (4) An ex parte temporary order for protection shall be effective for a fixed period not to exceed fourteen days, but may be reissued. A full hearing, as provided in this chapter, shall be set for not later than fourteen days from the issuance of the temporary order unless the original order is reissued. The respondent shall be served with a copy of the ex parte order along with a copy of the petition and notice of the date set for the hearing. (5) Any emergency order shall contain the date and time of issuance and the expiration date SERVICE OF ORDER Except as otherwise expressly provided in this Code, every pleading, motion, notice and similar document which is required or permitted to be served upon a person shall be given in the following manner: (1) By personally delivering a copy to the individual's legal counsel or to the individual; or by leaving it at the individual's office with the individual's secretary or other person; or if the individual to be served has no office, leaving it at the individual's dwelling place or primary place of residence with some person of suitable age and discretion who resides at such residence; or (2) If personal service cannot be made, then by certified mail, return receipt requested, postage prepaid, and properly addressed to the last known residential address of the individual to be served; or (3) Any method approved by the Court as reasonable if the above methods are unsuccessful; and

5 (4) Personal service of documents on behalf of the Tribe may be made by tribal law enforcement. (5) The Court Clerk shall have a copy of any order issued under this chapter forwarded on or before the next judicial day to law enforcement for service upon the respondent. Service of an order issued under this chapter shall take precedence over the service of other documents unless they are of a similar emergency nature. (6) If law enforcement cannot complete service upon the respondent within ten (10) days, the petitioner shall be notified. The petitioner shall provide information sufficient to permit notification, if possible. (7) If an order entered by the Court recites that the respondent appeared in person before the Court, the necessity for further service is waived and proof of service of that order is not necessary ASSISTANCE OF LAW ENFORCEMENT IN EXECUTING THE ORDER When an order is issued under this chapter upon request from the petitioner, the Court may order a law enforcement officer to accompany the petitioner and assist in placing the petitioner in possession of the dwelling or residence, or otherwise assist in the execution of the order of protection. If the Court orders the respondent to remove his or her belongings from the dwelling, law enforcement may be required to supervise the removal, at a time scheduled by law enforcement. The Court shall specify in its order the individual items which shall be removed. A copy of the Order shall be provided to law enforcement. Law enforcement shall not be required to actually move the respondent's belongings VIOLATION OF ORDER - PENALTIES (1) Any person who violates the restraint provisions of an order of protection, knowing that the order has been issued against him or her is guilty of an offense and shall be sentenced to a fine not to exceed Five Thousand Dollars ($5,000); and jail time, not to exceed one year; and appropriate treatment to prevent further domestic violence, if available. This offense may be charged in addition to any offense committed in violating the order. (2) The violator shall be required to pay the costs of incarceration and costs of transportation to the jail facility incurred by law enforcement under this Code. (3) A violation of an order of protection shall also constitute contempt of court and may be dealt with under Chapter 9 of this Code. (4) Violation of an order of protection by a non-tribal member shall be grounds for exclusion from the jurisdiction of the Kalispel Tribe of Indians and penalties for civil contempt of court as set forth in Chapter 1-14.

6 VIOLATING THE ORDER - ARREST A law enforcement officer shall arrest without a warrant and take into custody, a person who the officer has probable cause to believe has violated an order issued under this chapter that restrains the person or excludes the person from a residence, if the person has knowledge of the Order ORDER - MODIFICATION - TRANSMITTAL Upon application with notice to all parties and after a hearing, the court may modify the terms of an existing order for protection. In any situation where an order is terminated or modified before its expiration date, the clerk of the court shall forward on or before the next judicial day a true copy of the modified order or the termination order to the appropriate law enforcement agency specified in the modified or termination order. Upon receipt of the order, the law enforcement agency shall promptly enter it in the law enforcement information system RENEWAL OF PROTECTION ORDER The petitioner may apply for renewal of the order by filing a petition for renewal at any time within the three months before the order expires. The petition for renewal shall state the reasons why the petitioner seeks to renew the protection order. Upon receipt of the petition for renewal the court shall order a hearing which shall be not later than fourteen days from the date of filing the petition or as soon thereafter as possible. Personal service shall be made on the respondent not less than five days before the hearing. If timely service cannot be made the court shall set a new hearing date and shall either require additional attempts at obtaining personal service or permit service by publication or by mail. If the court permits service by publication or mail, the court shall set the new hearing date not later than twenty-four days from the date of the order. If the order expires because timely service cannot be made the court shall grant the petition for renewal unless the respondent proves by a preponderance of the evidence that the respondent will not resume acts of domestic violence against the petitioner or the petitioner s children or family or household members when the order expires. The court may renew the protection order for one year. If the court declines to renew an order for protection, the court shall state in writing on the order the particular reasons for the court s denial.