On our blog, we have previously covered Orders for Protection and the standard the petitioner has to meet in order to succeed on a Petition for an Order for Protection. [Refer to: Order for Protection (OFP) in Minnesota: Can I get an Order for Protection for a Child in Minnesota?; Domestic Abuse Order for Protection (OFP); and, Order for Protection in Minnesota.] In this blog, I want to focus on the grounds for renewing or getting a subsequent Order for Protection against the same person, because the standard is very different.
Ordinarily, a petitioner requesting an OFP needs to show that the respondent physically harmed the petitioner, inflicted fear if imminent physical harm upon petitioner, or made terroristic threats against the petitioner. A petitioner is entitled to a subsequent OFP or an extension of a present OFP if the petitioner can prove one of the following:
- The respondent has violated a prior or existing OFP;
- The petitioner is reasonably in fear of physical harm from the respondent;
- The respondent has engaged in the act of stalking within the meaning of Minn. Stat. § 609.749, subd. 2.; and
- The respondent is incarcerated and about to be released, or has recently been released from incarceration.
As you can see, a petitioner does not need to suffer the same kind of domestic abuse that precipitated the original OFP in order to protect him or herself with a subsequent or extended OFP.
Usually, the most straightforward of these grounds for an OFP is that the respondent is incarcerated and is about to be released from incarceration. This fact should be easy to prove using public records that are available.
Slightly more difficult, would be proving that the respondent has violated a prior or existing OFP. This basis for an OFP can be established at the hearing by providing sufficient evidence to the judge that the OFP was violated. Particularly valuable evidence in such a case would be police reports or other evidence that the petitioner reported the alleged violations of the OFP to the police. Of course, if the petitioner did report the violation of the OFP to the police, and the respondent was charged and convicted with violating the OFP, that will make this factor very easy to prove.
Regarding stalking, a quick reference to Minn. Stat. § 609.749 will show all the various grounds upon which a person can be considered to have criminally stalked another person. These factors include: threatening the petitioner; following or monitoring the petitioner; returning to petitioner’s property or home without consent; repeatedly making telephone calls or sending text messages to the petitioner; and, repeatedly mailing, e-mailing, or messaging the petitioner.
The last basis for a subsequent OFP or OFP extension is that “the petitioner is reasonably in fear of physical harm from the respondent”. (Minn. Stat. § 518B.01) The primary method of proving this factor will be the petitioner’s testimony to the court. There are secretly two elements to this factor:
- That the petitioner is subjectively in fear of the respondent; and
- That the petitioner’s fear is objectively reasonable.
To prove the first element, the petitioner simply has to convincingly testify that he or she remains afraid of the respondent. In order to demonstrate that this fear is objectively reasonable, some explanation will be necessary of what it is that the petitioner fears, what the respondent has done to cause that fear, and any other factual circumstances that make it reasonable to make the petitioner fear physical harm from the respondent. Interestingly, this statute specifically states, “A petitioner does not need to show that physical harm is imminent to obtain an extension or subsequent Order under this subdivision.” The including of this sentence eases the burden of a petitioner seeking to show that they are in reasonable fear of harm from the respondent.