In Minnesota, victims of domestic abuse can go to civil court to petition (request) an order for protection (OFP). An OFP directs the alleged abuser to not harm or have any contact with the victim. Violating the order can result in criminal penalties.
The Domestic Abuse Act allows victims of domestic abuse by a family or household member to petition on behalf of themselves and any minor children for an OFP.
Domestic abuse means the following acts committed by a family or household member: physical harm, bodily injury, or assault; threats of violence or with a deadly weapon; criminal sexual conduct (sexual assault); or interference with a 911 call.
Family or household members include spouses or former spouses, parents and children, related individuals, people who live or lived together, people who share a child or unborn child together, and people in significant or sexual relationships.
The victim must fill out paperwork provided by the court. In the paperwork, the victim is referred to as the petitioner and the alleged abuser is the respondent. The petitioner will need to provide facts that support the allegations of domestic abuse in a sworn statement (called an affidavit). (There are no filing fees.)
Where? Individuals can apply for an OFP in the county where the petitioner or respondent lives, where the domestic abuse occurred, or where a family court case is, was, or could be filed (such as divorce or child custody matter). Find your court here.
Ex parte order. Based on the petition, the judge can issue a temporary order that will be effective immediately. A police officer will serve this order—called an ex parte (ex PAR-tay) order—on the respondent. An ex parte order means the judge has only heard one side of the story (the petitioner's side). This temporary order offers limited but key protections, such as prohibiting the respondent from contacting or harming the petitioner.
Hearing request. Upon receiving the ex parte order, the respondent can request a hearing to explain their side of the story. If the respondent doesn't request a hearing, the court can make the temporary order permanent. The petitioner can also request a hearing to seek more protections and relief beyond what is contained in the ex parte order.
The type of order—ex parte or permanent—will determine the relief available and the duration of the order.
As mentioned above, the ex parte order is limited and temporary but that doesn't mean the respondent should take it lightly. The order can prohibit the respondent from making any contact with the victim and exclude the respondent from any home they share. If the respondent violates the order, the result can be an arrest, jail time, and a criminal conviction.
The respondent must be aware of the order to violate it. With ex parte orders, the respondent wasn't at the hearing. So, if the officer serves an ex parte order on the respondent in a location that violates the order (say the shared home), the officer will direct the respondent to leave. If the respondent refuses to leave, the officer can then make an arrest.
After notice to the respondent and a hearing, the judge can issue a permanent OFP (which is a two-year order subject to extensions). The relief provided in the permanent order can be much broader than the ex parte order, but a hearing must be held to expand the relief.
Even if the respondent doesn't request a hearing, the petitioner can. So, a respondent cannot prevent the court from issuing this more expansive order by not requesting a hearing or by ignoring the petitioner's requested hearing. The hearing would go on without the respondent's input, and if issued, the respondent would be subject to this new order.
After the hearing, if the court finds domestic abuse exists, it may issue an order:
If the judge decides the respondent presents a credible threat of harm to the petitioner, the order can prohibit the respondent from possessing firearms.
Even though an OFP is a civil court order, violating the order results in criminal penalties.
Gross misdemeanor. A second violation is a gross misdemeanor. A first violation can also result in a gross misdemeanor if the defendant (respondent) was convicted of a prior domestic violence-related offense in the past ten years. For a gross misdemeanor, the defendant faces a minimum of ten days and up to one year in jail and a $3,000 fine.
Felony. A third violation means felony penalties, as does a first or second violation if the defendant has qualified priors that add up to a third offense. Any violation while possessing a firearm is also a felony. A felony carries up to five years in prison and a $10,000 fine. If the judge places the defendant on probation, it must order a minimum 30-day jail sentence.
Mandatory arrests. Any time a police officer has probable cause to believe an OFP violation occurred, the officer must arrest the person and take them into custody with a minimum 36-hour jail hold (unless the judge releases them earlier).
Firearm restrictions. If an OFP violation involved a firearm, the defendant will be prohibited from possessing a firearm for three years to life. Plus, the judge must order the defendant to forfeit (give up) the firearm. Even if the violation didn't involve a firearm, the judge can still prohibit firearm possession for up to three years. A violation of a firearm restriction carries a gross misdemeanor penalty of up to one year in jail.
(Minn. Stat. § 518B.01 (2021).)
If you received notice of an OFP issued against you, contact an attorney who works in family law or criminal defense. For criminal charges stemming from a violation, talk to a criminal defense attorney.
If you're a victim seeking assistance in filing for an OFP, contact a lawyer who specializes in family law or a victim's advocate. You can also check out Nolo's Resources for Victims of Crime.
The Minnesota Judicial Branch provides free forms and instructions online for petitioning for and responding to an OFP.