In some instances, parents agree to allow an adult other than themselves to raise their child or children.  These situations where custody is awarded via an agreement between the parties can also be part of the basis for establishing third-party custody. Voluntary agreements for third-party custody often leave the court with jurisdiction over the matter so either parent can petition the Court to restore custody to them in the future.

Third-party custody by order of a Court

Custody may be awarded by a family Court to a third party (who is neither of the biological parents) to raise the child or children. This generally happens when the Courts finds that the parents are unfit to raise the child or children.  The basis for finding parents unfit and giving custody to a third party include: in cases of child abuse or neglect, substance abuse by the parent/s, abandonment of the child/children, inability to provide for or care for the child, or inability to adequately raise or protect the child.

A parent or parents will be found unfit if the Court deems that it is contrary to the best interests of the child or children to be allowed to remain in the custody of the parent/s due to any one of the above factors or factors similar or adding up to the above.

If a parent or parents are found to be unfit and a suitable third-party petitions for custody of the child or children, the court will consider the petition by using the best interests of the child standard established under Minnesota statue 518.17 subd.1.  The Court retains authority over the case and may later consider a petition by the parents to regain custody if circumstances significantly change.

Special Immigrant Juvenile Status (SIJS)

A Special Immigrant Juvenile is an unmarried person under the age of twenty-one who is in the United States; and who has been declared dependent on a juvenile court located in the United States or whom a juvenile court has legally committed to, or placed in the custody of, an agency or department of a State or of an individual or entity appointed by a State or juvenile court; and whose reunification with one or both parents is not viable due to abuse, neglect, abandonment or a similar basis found in state law.  8 U.S.C. § 1101(a)(27)(J).

With respect to the special juvenile status and family courts, an important provision of the statute is the reference to the placement of the child in the custody of “an individual” as provided the above federal statute.  While this statute helps place juveniles in the custody of an agency, entity or individual (third-party) approved by the family court, it is most significant for special juveniles who happen to be unauthorized immigrants.  The third-party custodian who petitions to be awarded custody of the child/children, who are in the US illegally, must make sure that the Court makes certain factual findings that allow the custodian the ability to continue to care for the child/children without negative immigration consequences, like the deportation of the child.  To avoid such consequence, the petitioning custodian must be a US citizen and petition for special immigrant juvenile status for the child once third-party custody is granted.

Eligibility and Requirements

The requisite findings that make it possible for the third-party custodian to petition the immigration service for Special Immigrant Juvenile Status (SIJS), legal status, for the child or children, are detailed in the SIJS regulations.  For a child without legal status who has been given over to a third-party custodian to be eligible to apply for SIJS, the Juvenile Court or State Court must first make several findings of fact.  Under the law, the Juvenile or State Court does not make any immigration decisions, but rather, makes factual findings concerning the child.  The Juvenile or State Court –not immigration– makes these findings because these are the courts with both knowledge and skill in juvenile matters.  The required findings include:

• That the child is dependent upon the juvenile court or has been legally placed under the custody of an individual (third-party);

• That the child’s reunification with one or both parents is not viable due to abuse, neglect, abandonment or similar basis under state law; and

• It is not in the “best interest” of the child to be returned to his parents’ previous country of nationality or country of last habitual residence.

A prudent third-party custodian should argue to the family Court that the lack of security for the child/children, neglect, or desertion of the child that leads to the child’s or children’s illegal crossing or entry alone into the United States is akin to abandonment under the law.  While the above findings by the family court will not entitle the child to be awarded residency in the U.S. by the immigration service, they are a prerequisite for applying to the immigration service for any legal status. Without an order from the Family Court with the above findings, the child cannot petition the immigration service for legal status.
What to Do

If you find yourself involved in a third-party custody case or a third-party custody case with SIJS implications, contact an experienced family lawyer immediately, especially if the child is not a U.S. citizen and you are a U.S. citizen.  A third-party custody award may provide immigration options for the child.

If you have questions about a third-party custody case, its immigration consequences, or any other issues in this article, contact an experienced family law attorney.  Consult a family lawyer to determine what process is relevant to your particular case or situation or for any of the issues raised in this article.

Nothing in this article should be taken as legal advice for an individual case or situation.  The information is intended to be general and should not be relied upon for any specific situation.  For legal advice, consult an attorney experienced in family law.

When irreconcilable differences lead a married couple to end their relationship, there are a number of ways to formally end the marriage.  Parties can choose to file a joint petition for divorce when they both agree on the terms of the divorce, in lieu of a contested divorce battle in the courts.  Parties can also enter into a written agreement to end their marriage with little court involvement.  Divorce proceedings often take a long time and can be a difficult and expensive experience, particularly if there are children, business assets, and real property involved.  In cases where there are disagreements, Minnesota courts allow couples the option of Early Neutral Evaluations (ENE) to find how to best resolve some of the challenging issues in the divorce.  These evaluations lessen the impact of a prolonged process prior to having the matter brought before the court.

A Marital Termination Agreement (MTA) is an additional method to resolve a marriage amicably between divorcing couples.  An MTA is an ideal option in cases where a couple wants to end their marriage in a friendly and fair manner. The MTA is a written agreement entered into between divorcing couples detailing how they wish to share their joint or marital assets, and/or resolve custody issues if children are involved.  It is then presented to the court for approval and to be incorporated into the court’s judgment and decree ending the marital relationship.

Is a Marital Termination Agreement Right for Me?

There are several factors to consider when deciding whether you and a divorcing spouse should prepare and enter into an MTA.  One of the most important factors is whether both parties agree on all issues regarding the divorce.  Some of these issues include how to fairly share all the marital assets, the parenting and custody arrangements if children are involved, child support and child care, health coverage, etc.  In cases involving children, a Marriage Termination Agreement must also address how child support payments are to be made, how conflicts involving custody will be resolved, income tax child dependency exemptions, health insurance coverage for minor children, amongst others.

Furthermore, depending on the particular circumstances, the parties to an MTA may have to make a decision in regards to spousal maintenance or alimony.  If they choose to not have either side responsible for spousal support, then they must include a Karon waiver in the agreement.  A Karon waiver is a mutual disclaimer stating that neither side will be required to pay spousal maintenance and that the court shall not have the power to review the waiver.  The waiver must be based on adequate consideration, full disclosure of each party’s financial circumstances, property division and the parties’ agreement that the MTA is fair and equitable.

Parties who chose to use an MTA must affirm in the agreement that they have read, understood, and given serious consideration to its contents.  They must agree that it is fair and equitable under the circumstances, and that it has been made to allow an orderly and just determination of the property settlement and resolution of the relevant issues in a manner satisfactory to both parties.  A Marital Termination Agreement may not be appropriate for certain divorcing couples who do not have children or assets together.  Those with limited joint assets may be better off filing a joint petition for dissolution instead of an MTA.

What to Do

If you find yourself involved in a divorce, contact an experienced family lawyer immediately, particularly if you are not a U.S. citizen and a divorce may have consequences on your immigration status.  Consult with an attorney who has the experience and knowledge it takes to understand what kind of divorce process is best suited for your particular situation and how it can affect your immigration and other family law cases.

If you have questions about a divorce, its immigration consequences, or any other issues in this article, contact an experienced family law attorney.  Consult a family lawyer to determine what process is relevant to your particular case or situation or for any of the issues raised in this article.

Nothing in this article should be taken as legal advice for an individual case or situation.  The information is intended to be general and should not be relied upon for any specific situation.  For legal advice, consult an attorney experienced in family law.

Orders for Protection are generally orders to protect people who are victims of domestic abuse or are at risk of being further victimized. Domestic abuse is defined as any of the following conducts between family or household members: actual physical harm, bodily injury, assault, fear of imminent physical harm, bodily injury or assault, terroristic threats, criminal sexual conduct, or interference with an emergency call.

An Order for Protection (OFP) may be brought under Minn. Stat. § 518B.01, subd. 4(a) by:

• A family or household member on their own behalf
• A family or household member, a guardian, or a reputable adult age 25 or older on    behalf of a minor; or
• By a minor age 16 or older against a spouse, former spouse, or person with whom the minor child has a child, if allowed by the court.

When you are the subject of an Order for Protection or the ‘defendant’ or ‘respondent’ in an order for protection case, it is critical that you understand the restrictions against your ability to contact the victim or ‘petitioner’ and your right to request a hearing.

Typically, the OFP is issued as an Ex-Parte (for one party) Order. Ex parte means a legal proceeding brought by one person in the absence of and without representation or notification of other parties. The OFP order granted by the judge, ex parte, is typically a temporary order in Minnesota and the respondent is given five (5) days to request a hearing regarding the matter. Once a hearing is requested, the parties present themselves before a family court judge, referee or magistrate to have a ‘mini-trial’ on whether or not a permanent order for protection should be issued.

A permanent order for protection is typically in place for two years in Minnesota and can be renewed at the end of that period. An order for protection directs the offending party not to commit any acts of domestic abuse against the victim and excludes the offender from the victim’s home, workplace and other locations relevant to both victim and offender. Once an order for protection is entered against someone, it prohibits them from having any contact, direct or indirect with the victim. This includes any contact via telephone, text message, email, pager, and any other electronic means and via third parties, etc.

If you have an order for protection issued against you and you encounter the victim in a public location, you are required to leave the place, not the victim. Failure to leave any place where you encounter the victim may result in a violation of an OFP.

Consequences of Violating an OFP

Any violation of an OFP may be charged as a misdemeanor punishable by up to 90 days in jail, or $1,000 fine, or both. It can also be charged as a gross misdemeanor, punishable by up to one year in jail, or up to a $3,000 fine, or both. A violation could also result in a felony conviction, punishable by imprisonment of up to five (5) years in jail or a fine of $10,000, or both. Police officers have the power and authority to arrest you without a warrant and take you into custody if the officer believes you have violated an Order for protection.

Immigration Consequence

For people who are non-U.S. citizens, a violation of an order for protection carries the most severe of immigration penalties as it is a deportable offense. Non-U.S. citizens should be particularly wary of violating an OFP as it could result in their deportation, even if you have a permanent resident/green card.

Other Important Effects of an OFP or Pendency of an OFP case

Anyone who has an OFP currently in effect against or pending against them is prohibited from carrying, transporting, or receiving any firearm or ammunition. An OFP is enforceable by authorities in all fifty U.S. states, the District of Colombia, Tribal lands and the U.S. territories.

Relevance to Other Family Law Cases

The family court will consider an Order for Protection in a child custody, parenting time and child support case and weigh it negatively against the person who is the offender in the OFP.

What to do

If you find yourself the ‘Defendant’ or ‘Respondent’ in an Order for Protection case contact an experienced family lawyer immediately particularly if you are not a U.S. citizen. Attorney Obi Chukwu has successfully guided several clients through the Order for Protection process, either defending one or getting one issued. He has also helped clients make the best use of the process to produce positive results even in the most acrimonious situations. Attorney Chukwu has the experience and knowledge it takes to understand what an order for protection against you or in your favor means for you and how it can affect your immigration and other family law cases. Attorney Chukwu has effectively challenged false accusations on Orders for Protection and gotten them categorically dismissed.

If you have questions about an Order for Protection, its immigration consequences, what you can do to fight one or any other issues in this article, contact an experienced family law attorney. Consult a family lawyer to determine what process is relevant to your particular case or situation or for any of the issues raised in this article.

Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in family law.

Visitation rights between a noncustodial parent and a child is essential to the continuance of a parent-child relationship. A noncustodial parent is the parent who does not have either legal or physical custody of the child or both. The parent who has physical custody of the child is the parent with whom the child is living on a day to day basis. The court must grant the noncustodial parent visitation rights to enable that parent to maintain a child to parent relationship that is in the best interests of the child. In year 2000, Minnesota law changed what was previously referred to as “visitation” or “visitation rights” to “parenting time”.

Limitations to Parenting Time

Generally the law provides that if the parenting time of a noncustodial parent is like to endanger the child’s physical or emotion health or impair the emotion al development of the child, the court can restrict the noncustodial parent’s parenting time. The court however, can only do so after a haring on the matter and a finding that the child is in danger of physical harm.

Also the court can limit custody or parenting time when a parent has been convicted of certain crimes. Some of these crimes include but are not limited to: assault in the first, second, or third degree, malicious punishment of a child, neglect of a child, terroristic threats, felony stalking, etc.

Under these circumstances, a person who has been convicted of one or more of these crimes has the burden of showing that custody or visitation by that person is in the best interests of the child. This is called the ‘burden shifting statute.’ Also the law requires a guardian ad litem to be appointed in any case where this statute applies.

Guardian Ad Litem

A guardian ad litem or GAL is an advocate for a child or children whose welfare is a matter of concern for the court. In legal terms, a GAL means “guardian for the lawsuit”. When the court is making decisions that will affect a child’s future, the child needs and deserves a spokesperson – an objective adult to provide independent information about the best interests of the child. While other parties in the case are concerned about the child, the Guardian ad Litem is the only person in the case whose sole concern is the best interests of the child, and he or she is assigned as an advocate for the child for the duration of the court process. Different from a legal guardian, the Guardian ad Litem has no control over the person or property of the child and does not provide a home for the child. The Guardian ad Litem does not function as the child’s attorney and does not provide direct services to the child.

Custody Evaluation

A custody evaluation is an evaluation about custody of the children conducted by a professional who is usually a psychologist or social worker, who assesses the family’s situation and then makes recommendations to the court about a parenting and custodial arrangements that will meet the children’s needs. Judges often give a lot of weight to the recommendations of the custody evaluator, therefore it is very important to be properly prepared for this process.

A custody evaluation or the appointments of a GAL are very effective methods of resolving some of the critical disputes that often endanger a smooth custody determination process. Attorney Obi Chukwu has helped several clients successfully through the custody evaluation process and achieved desirable results. He has also helped clients make the best use of the process to get positive results even in the most acrimonious situations. Attorney Chukwu has the experience and knowledge it takes to understand what a custody evaluation means for you and how it can affect your custody case. In one situation, opposing counsel tried to use the process to delay temporary custody for Mr. Chukwu’s client. Mr. Chukwu effectively brought to light the factual and legal analysis that showed his client deserved custody during the process, which led to a recommendation of custody for his client.

If you have questions about Parenting Time, GAL, Child Custody arrangements or any other issues in this article, contact an experienced family law attorney. Consult a family lawyer to determine what process is relevant to your particular case or situation or for any of the issues raised in this article.

Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in family law.

What is Early Neutral Evaluation in the Family Law Context?

Early Neutral Evaluation, or ENE as it’s commonly called, is a relatively new concept in MN family law.

Early Neutral Evaluation is a forum in which the parties and their attorneys present the key issues of their dispute to a neutral evaluator in the presence of the parties.  ENE occurs after the case is filed in court but before formal discovery of evidence.  The selected Neutral or Neutrals give an assessment of the strengths and weaknesses in each side’s case before proceeding in family court. 

History

The use of ENE in family court cases falls under the amendment to the Alternative Dispute Resolution (ADR) processes established in Rule 114 for all civil cases.

Under the new provisions of the rule, all family law matters in district court are subject to the ADR.  Family court judges normally refer cases to ENE or, as it is known in some counties, Social Early Neutral Evaluation (SENE).  There are a few exceptions to the requirement for ENE in family court, and they include:

• 
  
  Domestic abuse cases


• 
  
  Contempt cases


• 
  
  Maintenance, child support, and parentage cases where the public agency responsible for enforcement is a party or is providing services to a party in the case.

Further, courts may not require parties to participate in ENE or other ADR processes where:

One of the parties claims to be the victim of domestic abuse by the other party; or

If the court believes there is a probability that one of the parties or a child of the parties has been physically abused or threatened with physical abuse by the other party.

What does this mean for me?

The idea behind the ENE is to allow the parties a face-to-face opportunity to discuss the core of their dispute with a qualified neutral.  Both sides choose the neutral/s from a court approved list.  The neutral/s will listen to both sides equally, take some time to analyze the issues and give an opinion of the best way to move ahead for both sides.  If the parties accept the recommendation of the neutral/s, any agreement is put into writing and forwarded to the judge in the case.  Often it may take more than one session with a neutral/s for the parties to reach accord on their key disagreements.

Who pays for the ENE?

Both sides are equally responsible for the costs of the ENE and typically pay the same as the attorneys’ hourly rates or by a sliding scale set by the state.

Can the process help me?

ENE is a very effective method of resolving some of the critical disputes that often endanger a smooth dissolution process.  Attorney Obi Chukwu has helped several clients successfully through the ENE process and achieved desirable results.  He has also helped clients make the best use of the process to get positive results even in the most acrimonious situations.  Attorney Chukwu has the experience and knowledge it takes to understand what ENE means for you and how it can affect your divorce case.  In one situation, opposing counsel tried to use the process to delay temporary custody for Mr. Chukwu’s client.  Mr. Chukwu effectively brought to light the factual and legal analysis that showed his client deserved custody during ENE, which led to a recommendation of custody for his client.

If you have questions about Early Neutral Evaluation, ADR or any other issues in this article, contact an experienced family law attorney.  Consult a family lawyer to determine what process is relevant to your particular case or situation or for any of the issues raised in this article.

Nothing in this article should be taken as legal advice for an individual case or situation.  The information is intended to be general and should not be relied upon for any specific situation.  For legal advice, consult an attorney experienced in family law.

You have just completed your family case summons and petition.  You have painstakingly reviewed your affidavits and assets and have made sure you’ve disclosed all you need to and clarified what you are requesting from the court.  You show up at court to file your documents and pay the filing fees and the first question the clerk asks is: “Where is the affidavit of service?”  What?  What affidavit?

A proceeding for marriage dissolution, legal separation, or annulment is commenced by the service of a summons and petition upon the person (i.e. hand delivered to the person) of the other party according to Minnesota law.  The summons is a form approved by law makers and provided free of charge to the public to use in initiating a petition for dissolution/divorce.  A summons notifies the parties of what they must and must not do once the case is initiated.  It also includes a notice of alternate dispute resolution provisions available to the parties.  A copy of a dissolution summons can be found at: http://www.mncourts.gov/default.aspx?page=513&item=259&itemType=formDetails

If a proceeding is started by filing a joint petition with the other party (also known as the joint petitioner), signed by both sides, a summons is not required.  The proceeding is deemed to have started when both parties sign and file the joint petition with the court.

How Do I Serve?

In a proceeding that is not a joint petition, service of a summons and petition is required to be made personally.  Personal service or personal delivery can be made on the other party (also known as the respondent) either within or without the state or even in a foreign country.  If personal service cannot be made, the court can order service of the summons by alternate means, including by mail or publication in a newspaper.  After the court orders service by alternate means, if the respondent is subsequently located, before service is completed, personal service must be made before the final hearing.

The Affidavit of Service

Once service is made, either via personal service or service by mail, the person effectuating the service, which must be someone other than the person petitioning the court, must sign a sworn statement or affidavit before a notary proving that they have effectively served the respondent either by mail or by personal delivery.  This affidavit or sworn statement of delivery is known as the Affidavit of Service.  A copy of an Affidavit of Service form can be found at: http://www.mncourts.gov/default.aspx?page=513&item=470&itemType=formDetails

The Application to Serve by Alternate Means

The petitioner must first attempt to serve the summons personally and if service cannot be made personally, then the petitioner can apply to the court for permission to serve by alternate means (i.e. by mail or publication).  The application for service by alternate means must include information about the respondent’s last known location, attempts by the petitioner to find the respondent, etc.

If the petitioner provides a forwarding address for respondent in the application, the court will order service by first class mail to that address where there is a reasonable possibility that mail or information will be forwarded or communicated to the respondent.  If no address is provided, then the court will order service by mail to the respondent’s last known address.  The court may also order publication, in or out of the state or country, but only if it might reasonably succeed in notifying the respondent of the proceeding.  This means that the court may also order service by publication on a nonresident defendant/respondent living in a foreign country at an unknown address.

In addition, the court may also require the petitioner to make further efforts to locate the respondent through telephone calls to appropriate persons or via other means.  Service is deemed complete twenty-one days after mailing or twenty-one days after court-ordered publication.  More information about the Application to Serve Summons by Alternate means including a copy of the form and a sample Order to Serve by Alternate means can be found at: http://www.mncourts.gov/default.aspx?page=513&item=92&itemType=packetDetails

If the petitioner wants the court to help dispose of real estate located within the state of Minnesota, the court shall order that the summons, which shall contain the legal description of the real estate, be published in the county where the real estate is located.

If you have questions about the Service of Process or any other issues in this article, utilize the Family Court Self-Help centers for your county or contact an experienced family law attorney.  Consult a family lawyer to determine what process is relevant to your particular case or situation or for any of the issues raised in this article.

Nothing in this article should be taken as legal advice for an individual case or situation.  The information is intended to be general and should not be relied upon for any specific situation.  For legal advice, consult an attorney experienced in family law.

• A child’s food; housing; clothing and daily care; these are also known as Basic Support.

• The other aspect of child support is day care or child care costs for taking care of your child when you are unavailable, e.g. at work. This is Child Care Support

• And the cost of health and dental insurance for your child is known as Medical Support.

These three items, Basic Support, Child Care Support and Medical Support, combined, make up Minnesota’s definition of Child Support.

You can get a child support order as part of divorce proceeding, child custody case, Order For Protection (OFP) hearing, paternity or even legal separation proceeding.

How is Child Support Amount Determined?

In January 2007, the state of Minnesota started using a new guideline for setting child support called income shares. Under the income shares guidelines, child support is determined by using the gross income (pre-tax income) of both the parents. These incomes, also known as Parental Income for Child Support (PICS), are added together and plugged into the MN child support calculator. The calculator is a formula developed by MN lawmakers that automatically calculates how much child support a parent is responsible for based on their share of the combined income.

After the parents’ incomes are combined, it is then divided based on the percentage of each parent’s income that made up the total. What this means is that if you make significantly more money than the other parent, for example, if your income is 70% of the PICS, after it is compared to a spending chart for your income level, you may be ordered to contribute more toward child support than the other parent. In calculating your child support obligation, the calculator allows you to plug in other child support you are ordered to pay or are currently paying and gives you credit for other children living with you before determining the amount you have to pay for child support. 

For more information about the MN Child Support Guidelines Calculator, visit:

http://childsupportcalculator.dhs.state.mn.us/

Custodial and Non Custodial Parent

The time spent with your child/children also affects the amount you can be ordered to pay for child support. A custodial parent is the one who spends the majority of the time with the child/children. The non-custodial parent is the one who has less time with the children. For example, if you spend less than 10% of the time with your child/children, your child support does not change; however, if you spend between 10% to 45% of the time with your child/children; your support is reduced by 12%. If you spend over 45.1% of the time with your child/children and you have the same or similar income with the other parent, you do not pay any child support. Keep in mind, if you make more than the other parent, even if you spend over 45.1% of the time with your child/children, you will still have to pay some child support.

What about Child Care and Medical Support?

Typically, the parents are responsible for their children’s medical expenses and child care costs. The contribution of each parent will also be determined based on their income. If you are a non-custodial parent and your income is below the poverty guideline, that is if you make less than $10,830 for a family of 1, or $14,570 for a family of 2, you will pay a minimum amount for child support. The minimum amount that can be ordered is $50 per month for 1 or 2 children, $75 per month for 3 or 4 children and $100 per month for 5 or more children.

If you have questions about child support or any other issues in this article, utilize the Family Court Self-Help centers for your county or contact an experienced family law attorney. Consult a family lawyer to determine what your rights or obligations are with respect to child support or for any of the issues raised in this article.

For more on the poverty guidelines, visit:
http://www.dhs.state.mn.us/main/groups/publications/documents/pub/dhs16_144819.pdf

Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in family law.

Cont. from Part 1

Harassment Orders

“Harassment” means acts, words or gestures that the harasser uses that
get in the way of someone’s safety, security, or privacy.  This can be
threatening to hurt the individual or their property, stalking or
following them, or repeatedly mailing or delivering objects to them.

A person who is being harassed can get a restraining order to prevent harassment in situations where they could not get an Order for Protection (OFP).  For an OFP, the abuser must be family, a cohabitant or ex-cohabitant, a significant romantic partner or significant other.  However, for a harassment order, the relationship between the harassed and the harasser does not matter.  The harasser may be a stranger, a neighbor or a co-worker.

Getting a restraining order from harassment is like getting an OFP.  The individual being harassed must first:

• Apply at the court with a petition and affidavit.  The court has the   forms.

• Pay filing fees (One can file for free, if they are low income).  Sometimes there are no fees.  This depends on what the harasser has done.

• The sheriff serves the papers.

The hearing is like an OFP hearing.  The Court order can:

• Order the harasser not to contact the victim and their family;

• Allow police to arrest the harasser without a warrant; and

• It lasts for 2 years.

There are several situations where victims of domestic violence or violence in general often refuse to report or help prosecute the perpetrators due to the fact that the victims do not have immigration status in the U.S. or have expired status.  In such situations there are specific immigration laws designed to encourage victims of violence without status to come forward and report the crime. 

U Visas

What is a U Visa?

The U visa is a special visa for victims of certain crimes, including crimes of domestic violence and sexual assault among others.  The person must be the victim or “indirect victim” of the crime, cooperate with law enforcement in the investigation of the crime, and show that they have suffered on account of the crime.  Some of the victim’s family members can be included in a U-visa application.

A U-visa application is not an application against the person who committed the crime.  It is an application for the victim.  There is strict confidentiality through the entire application for a U-visa.  The application and documentation will not be revealed to the person who committed the crime, or to other individuals in the community.  The person who committed the crime will not be interviewed about the applicant’s U visa case.

Victims of domestic violence who do not have legal status in the U.S. will be well advised to immediately contact an attorney with experience in family law and immigration law to determine if they qualify for U visa certification.  As a general rule, immigration has not been deporting U visa applicants and there is a general waiver even for those victims who came in illegally or have an outstanding order of deportation.  There are several issues to consider in such situations; again it is imperative to contact an attorney to talk with you in detail about this.

If a U-visa case is approved, immigration will grant U visa status to the victim applicant for four years.  Approved applicants will have the right to apply for Lawful Permanent Residency (Green Card) three years from the date of the approval.  Approved applicants need to be eligible for residency at that time.  Contact an immigration lawyer for specific details about this.

The United States Citizenship and Immigration Services (USCIS) has published a list of crimes that qualify for U visa certification, they include but are not limited to:

Domestic Violence, Obstruction of Justice, Unlawful Criminal Restraint, Abusive Sexual Contact, Sexual Assault, Sexual Exploitation, Felonious Assault, False Imprisonment, FMG, Kidnapping, Perjury, Prostitution, Rape, Torture, Trafficking, Witness Tampering and Other related Crimes.

Call 911 if you have a domestic violence emergency.  Consult an immigration/family lawyer or professional to determine if you are eligible for any of the reliefs listed in this article.

Nothing in this article should be taken as legal advice for an individual case or situation.  The information is intended to be general and should not be relied upon for any specific situation.  For legal advice, consult an attorney experienced in family/immigration law.

There has been a significant increase in the amount of domestic violence and domestic related incidents of harassment.  Victims of violence are best advised to call the police right away or, in the alternative, seek help from several of the domestic abuse hotlines or county support agencies.  

If an individual is worried about a child or an adult in someone else’s family or household, it is best to report the abuse first to Child Protection or Adult Protection Services.

For victims who want redress through the courts, the following are three ways to get relief.

Orders for Protection (OFP)

An Order For Protection (OFP) is a court order to stop family violence.  An OFP is not a criminal case.  Instead, it takes place in family court.  The court can order the abuser to stay away from the victim or order them to get counseling or treatment.  The court can also order child support or custody. 

An OFP is one of the key ways for a victim of family violence, physical abuse, or immediate harm threats, to not only stop such violence but to prevent it from reoccurring.  Victims of family violence need to understand the full breath of what encompasses domestic violence. 

Domestic/family violence includes incidents involving sexual violence and terroristic threats; other examples include: the abuser throwing things at the victim; pushing the victim saying things like “I’ll kill you”; waving a weapon at the victim; killing  the victim’s pets or forcing the victim to have sex; and/or preventing the victim from calling 911.

An individual can get an OFP if they are a victim of any of the above examples, behaviors or actions that are similar to those listed from a spouse, ex-spouse, anyone whom they have had a significant romantic or sexual relationship with, any blood relative, anyone they have lived with now, or used to live with, their parent, or their child if they are over 18 years old.  

The victim does not need to start a divorce to get an OFP and they can apply for a child within their household or family.  There are no residency requirements and there is no court fee for applying for an OFP.

While the victim does not need an order for protection to stop abuse, one of the most important things to keep in mind is that it is illegal for anyone to hurt, threaten, or stop someone from calling 911 for help.  An OFP makes it easier for individuals to protect themselves; it tells the abuser that any more threats or abuse will lead to arrest, criminal charges and maybe jail or a fine. 

Orders for Protection make it easier for the police to arrest the abuser.

There are two kinds of Orders for Protection, an “Ex-parte” order, which means an order without telling the person on the other side of the case, and a regular OFP.  An ex-parte order is in effect the day it is signed by a judge, before the abuser is served, and it protects victims until there is a hearing, which normally occurs within 7 days.  A hearing normally occurs within 14 days for a non ex-part order.

Someone who is suffering from family/domestic violence does not need a lawyer to get a temporary order for protection; however, since there are all kinds of relief, they could ask for an OFP and there might be custodial repercussions, it is advisable to contact an attorney for proper advice regarding the best way to proceed with the OFP. 

A key thing to keep in mind when preparing a petition for an OFP is to document within the petition the series of abuse or violence that has occurred from the abuser, the dates of their occurrence, and a description of each incident.  Judges are often reluctant to issue an OFP based upon only one incident, unless it is extreme.

Forms of Relief

In a petition for an order for protection, the applicant can ask for various forms of relief from the court such as: ordering the abuser not to harm or threaten the victim; his or her children or anyone in the home; ordering the abuser to leave the home; to stay away from the applicant’s work; home or school; ordering counseling for the abuser; and ordering the abuser to pay temporary child support and alimony.

It is illegal for a person who has an OFP against them to posses a firearm.  The applicant can ask the court to order the abuser to turn over their guns to the police.  The applicant can also ask in their petition for the court to keep their address and other contact information confidential.

Once an OFP is issued, it is can be for up to 2 years in most cases.  An order for protection also affects custody issues and rights against whom it is issued as the court must take the OFP into account when making a decision in custody hearings.  Once an OFP is issued, the victim should always keep a copy of the order with him or her at all times.

An applicant is well advised to consult a lawyer regarding how to best prepare for the OFP hearing as it is a full evidentiary hearing where the parties are required to show evidence of their allegations and if necessary offer testimony of witnesses.

Nothing in this article should be taken as legal advice for an individual case or situation.  The information is intended to be general and should not be relied upon for any specific situation.  For legal advice, consult an attorney experienced in family/immigration law.

Note: Go to Part 2.