Defending Against an Ex Parte Order of Protection

Obtaining an ex parte order of protection in Missouri is intended to provide swift legal relief for victims of domestic violence, stalking, or sexual assault. However, this expedited process, governed by RSMo. §§ 455.035 to 455.045, is not without its flaws. While it offers essential protection for many, it is also susceptible to misuse, often employed as a tool for harassment or to gain leverage in personal disputes such as custody battles or property control. This dual-edged nature of ex parte orders underscores the need for a balanced understanding of their application and having expert legal defense on your side can make all the difference in protecting your rights.

An ex parte order of protection can provide valuable legal protection to persons who are victims of domestic violence, stalking, or sexual assault. RSMo. §§ 455.035 to 455.045. However, while this kind of court order may be appropriate and necessary in many cases, the “ex parte” process in Missouri is also widely abused by those seeking to use free simplified court procedures as their own form of harassment, or for other motivations, such as to gain some perceived advantage in a custody or divorce action, or to evict their paramour to gain immediate control over property or a residence.

The process for obtaining an ex parte order of protection in Missouri is easy. First, the person seeking the order (the Petitioner) goes to the circuit clerk’s office at the local courthouse to obtain the form used in the application process. This form requires the Petitioner to fill in all the information about the person against whom they are seeking protection (the Respondent) and requires a brief description of what the Petitioner claims the Respondent did (i.e., to describe how the Respondent stalked, harassed, coerced, followed, sexually assaulted, or caused/attempted to cause physical injury) to require a protection order. Petitioners do not have to pay any filing fees to start this process. This application, called an “application for an ex parte order of protection,” is then given promptly to the duty judge for review.

Based solely on what is written in the application the judge can do one of three things. The judge can grant the ex parte application and set a hearing date. In doing so the judge will enter an ex parte “order of protection” that is then sent to the Sheriff for service on the Respondent. The judge can also deny the ex parte application but still find that there is enough of a concern to set the case for a full hearing date. Or the judge can deny the ex parte application.

If the application is set for a full hearing both the Petitioner and the Respondent must appear, with counsel if they choose, ready to present evidence and testimony to the court. If the Respondent consents to the entry of a full order of protection the judge will enter the order without making any findings that the Respondent did the things alleged. However, if the Respondent does not want to consent to the full order of protection, then a hearing must be held by the judge. At that hearing the Petitioner must testify under oath and can present other witnesses and evidence if relevant. The Petitioner has the burden of proving by a preponderance of the evidence that his/her allegations of abuse, domestic violence, or stalking are more likely true than not. The Respondent has the right to cross examine the Petitioner or any witnesses who testify and has the right to present his/her own evidence and testimony, either to refute what the Petitioner claims, or to show the Respondent’s actions “alleged to constitute abuse were otherwise justified under the law.” RSMo. § 455.040.1(1).

If the judge grants an application and enters a full order of protection against the Respondent, the judge will also make specific written findings about what the court believes the evidence has proven. Based on those findings the court can enter an order of protection against a Respondent for a little as 180 days, and as long as 10 years. If an application is later made to renew that order of protection the court can, if certain findings are made at a renewal hearing, be extended all the way up to the life of the Respondent.

Any full order of protection can also have negative implications for a Respondent’s Second Amendment Right to possess firearms. Also, any alleged violation of either an ex parte or full order of protection can constitute a crime punishable by incarceration. See RSMo. § 455.538.

Because of the many negative legal implications that can be caused by a full order of protection, we are regularly hired by Respondents to defend against these ex parte applications. As a civil case, all the rules of discovery available under the Missouri Rules of Civil Procedure apply. See generally, Missouri Rules of Civil Procedure 57, 58, 59, and 61. We regularly issue subpoenas to compel the production of other potentially relevant evidence such as phone or text records, employment records, police reports, and financial records. We also use subpoenas to compel the Petitioner (and sometimes the Petitioner’s claimed witnesses) to appear at our office for the purpose of deposition. A deposition is the process where a party (the Petitioner or Respondent in a civil case) or a witness is compelled to appear and answer questions under oath. This deposition process helps lawyers prepare for an eventual hearing or trial and provides valuable insight into the allegations being made against their client to prepare for the full hearing. If a Petitioner refuses to comply with the discovery/deposition rules we can then use that as a basis to force the dismissal of their ex parte application.

If you find yourself the subject of an ex parte application for an order of protection we can help defend you against the significant civil and sometimes criminal penalties that can come from a full order of protection.