A person may seek a protection order whether or not the person
has contacted law enforcement officers to report a crime, but such
persons should be referred to law enforcement officers in the event
that a crime has been committed. It is the policy of the NHBP that
temporary protection orders may be issued without prior notice to
the respondent to ensure the immediate protection of the victim and
any family or household members, and to prevent further violence.
Orders may be modified or extended, with or without prior notice to
the respondent or a hearing, consistent with this purpose. Relief
under this section may not be denied or delayed on the grounds that
the relief is available in another action.
A petition to obtain a protection order under this section may
be filed by:
A.
Any person claiming to be the victim of domestic violence, family
violence, dating violence or stalking; or
B.
Any family member or household member of a minor or vulnerable adult
alleged to be the victim of domestic violence, family violence, dating
violence or stalking on behalf of the minor or vulnerable adult; or
C.
The Tribal Prosecutor; or
D.
Any person acting in an official capacity in the protection of domestic
violence, family violence, dating violence or stalking survivors,
elder abuse case managers or advocates, therapists, or other advocate
acting in a professional capacity.
A.
A petition shall allege the existence of domestic violence, family
violence, dating violence, or stalking, and shall be supported by
an affidavit made under oath stating the specific facts and circumstances
justifying the requested order.
B.
A petition may be filed regardless of the pendency of any other civil
or criminal proceeding related to the allegations in the petition.
C.
No filing fee shall be required for the filing of a petition under
this section. If an alleged perpetrator has been arrested for the
offense of domestic violence, family violence, dating violence or
stalking, the Court or the arresting police officer shall advise the
alleged victim of the right to file a petition under this section
without cost.
D.
The petitioner, or the victim on whose behalf a petition has been
filed, is not required to file for annulment, separation, or divorce
as a prerequisite to obtaining a protection order. However, the petition
shall state whether any other action is pending between the petitioner
or victim and the respondent.
E.
The Court shall make available standard, simplified petition forms
and instructional brochures with instructions for completion. The
NHBP Police Department and the Tribal Court shall make such forms
available upon request to victims of domestic violence, family violence,
dating violence, or stalking.
F.
Once a petition has been filed, the Court Clerk shall conduct a criminal
background check according to Court policy and attach the report(s)
to the petition.
Upon the filing of a petition for a protection order the Court
shall evaluate the petition for protection, on protecting the petitioner
and any other family members during this initial process; and:
A.
Immediately grant an ex parte protection order without bond if, based
on the specific facts stated in the affidavit, the Court has probable
cause to believe that the petitioner or the person on whose behalf
the petition has been filed is the victim of an act of domestic violence,
family violence, dating violence, or stalking committed by the respondent,
and issuance of the ex parte order is necessary to protect the victim
from further abuse.
B.
Cause an ex parte protection order, together with notice of hearing,
to be made immediately available to the petitioner for service by
a police officer, Court Officer, or other authorized person.
C.
The Court may hold the record open and request additional information
if the submitted information is insufficient at the time of filing.
The record must be completed within seventy-two (72) hours, and at
that time the order must be granted or denied.
D.
Hold a hearing within fourteen (14) calendar days after the granting
of the ex parte protection order to determine whether the order should
be vacated, extended, or modified in any respect.
E.
Once granted the order may not be dismissed without a Court hearing.
F.
If an ex parte order is not granted, serve notice upon both parties
to appear in Tribal Court and hold a hearing on the petition for protection
order within seventy-two (72) hours after the filing of the petition;
if notice of hearing cannot be personally served, notice shall be
provided consistent with NHBPCR Chapter 10, Court Rules for Restraining
Orders, Section 5, Judicial Review of the Emergency Restraining Order.
An ex parte protection order or a protection order entered after
notice and hearing may, when deemed appropriate by the Court, include
provisions:
A.
Restraining the respondent from committing acts of domestic violence,
family violence, dating violence, or stalking.
B.
Excluding the respondent from the residence, workplace, school, and
grounds of the dwelling of the victim or other specific location where
the victim can be found on a regular basis, whether or not the respondent
and the victim share that residence.
C.
Restraining the respondent from any contact with the victim and his
or her family or household members as is necessary for their safety
and welfare.
D.
Awarding temporary custody or establish temporary visitation rights
with regard to minor children of the respondent on a basis that gives
primary consideration to the safety of the claimed victim of domestic
violence and the minor children.
(1)
In every proceeding where there is at issue a dispute as to the custody
of a minor child, a determination by the Court that domestic violence
or family violence has occurred raises a rebuttable presumption that
it is detrimental to the child and not in the best interest of the
child to be placed in sole custody, joint legal custody, or joint
physical custody with the perpetrator of domestic violence or family
violence.
(2)
In every proceeding where there is at issue a dispute as to the custody
of a minor child, a determination by the Court that domestic violence,
family violence, sexual assault, or stalking has occurred raises a
rebuttable presumption that it is in the best interest of the child
to reside with the parent who is not a perpetrator of domestic violence,
family violence, sexual assault, or stalking in the location of that
parent's choice.
(3)
In every proceeding where there is at issue the modification of an
order for custody or visitation of a minor child, the finding that
domestic violence, family violence, sexual assault, or stalking has
occurred, since the last custody determination, constitutes a finding
of a change in circumstances.
(4)
If the Court finds that the safety of the claimed victim or the minor
children will be jeopardized by unsupervised or unrestricted visitation,
the Court shall set forth conditions or restrict visitation as to
the time, place, duration, or supervision, or deny visitation entirely,
as needed, to guard the safety of the claimed victim and the minor
children.
(5)
In determining custody and/or visitation, the Court must consider
the perpetrator's history of causing physical harm, bodily injury,
assault, or causing reasonable fear of physical harm, bodily injury,
or assault to another person.
(6)
If a parent is absent or relocated because of an act of domestic
violence or family violence by the other parent, the absence or relocation
is not a factor that weighs against the parent in determining custody
or visitation.
(7)
Any temporary custody order shall provide for child support and temporary
support for the person having custody of the children, in amounts
deemed proper by the Court.
(8)
In a visitation order, the Court may:
(a)
Order an exchange of a minor child to occur in a protected setting;
(b)
Order that visitation be supervised by another person or agency
at the perpetrator's expense;
(c)
Order the perpetrator of domestic violence or family violence
to attend and complete, to the satisfaction of the Court, a program
of intervention for perpetrators or other designated counseling as
a condition of the visitation;
(d)
Order the perpetrator of domestic violence or family violence
to abstain from possession or consumption of alcohol, controlled substances
or abuse of prescription drugs during the visitation and for twenty-four
(24) hours preceding the visitation, may order submission of a urinary
analysis or PBT prior to the visit;
(e)
Prohibit overnight visitation;
(f)
Require a Court-approved bond from the perpetrator of domestic
violence or family violence for the return and safety of the minor
child; and
(g)
Impose any other condition that is deemed necessary to provide
for the safety of the minor child, the victim of domestic violence
or family violence, or other family or household member.
(9)
Whether or not visitation is allowed, the Court may order the address
of the minor child and the victim to be kept confidential.
(10)
The Court may refer but may not order an adult who is a victim
of domestic violence or family violence to attend counseling relating
to the victim's status or behavior as a victim, as a condition
of receiving custody of a minor child or as a condition of visitation.
(11)
If the Court allows a family or household member to supervise
visitation, the Court must establish, in writing, conditions to be
followed during visitation.
(12)
The Court shall notify the restrained party that the willful
violation of any provision of the protection order is a criminal offense
and punishable by imprisonment and/or a fine.
E.
Ordering temporary guardianship with regard to an elderly or vulnerable
adult victim of domestic violence, family violence, sexual assault,
or stalking if necessary for the safety of the elderly or vulnerable
adult until the matter can be addressed through an action.
F.
Awarding temporary use and possession of property of the respondent.
G.
Restraining one or both parties during the pendency of the action
from transferring, encumbering, concealing, or disposing of property
except as authorized by the Court and requiring that an accounting
shall be made to the Court for all such transfers, encumbrances, dispositions,
and expenditures.
H.
Ordering the respondent to timely pay any existing debts of the petitioner,
including mortgage or rental payments, necessary to maintain the claimed
victim in his/her residence.
I.
Describing any prior orders of the Court relating to domestic matters
which are superseded or altered by the protection order.
J.
Notifying the parties that the willful violation of any provision
of the order constitutes contempt of court punishable by a fine or
imprisonment or both and constitutes a violation of this chapter for
which civil penalties may be assessed.
K.
If the victim or alleged victim is awarded temporary use of the house
and is listed on the rental agreement, the landlord, including Tribal
housing, shall at the request of the petitioner change the locks within
twenthy-four (24) business hours of issuance of the order.
L.
Ordering law enforcement to assist the victim in removing essential
personal effects from a shared home.
M.
Ordering, in the Court's discretion, any other lawful relief
as it deems necessary for the protection of any claimed or potential
victim of domestic violence or family violence, including orders or
directives to the NHBP Police Department.
A.
The provisions of the order shall remain in effect for the period
of time stated in the order, not to exceed one year unless extended
by the Court at the request of any party.
B.
The Court in its discretion may, upon request of either party, modify
a protection order:
(1)
By the petitioner. Before the Court may modify or reconsider a protection
order at the request of the petitioner, if children live in the home,
the Court may require the petitioner to attend a domestic violence
support group, with a session focused on the effects of domestic violence
on children.
(2)
By the respondent. Before the Court may modify or reconsider a protection
order at the request of the respondent, he or she shall provide the
Court with all pertinent documents, affidavits, compliance forms or
any other information required by the Court for either reconsideration
or modification of protection orders. The Court may require the respondent
to attend a domestic violence perpetrator treatment program, with
a session focused on the effects of domestic violence on children.
Temporary protection orders are to be served personally upon
the respondent by a police officer, officer of the Court, or other
authorized person within forty-eight (48) hours if possible. If the
respondent cannot be located, the order shall be mailed by certified
mail with return receipt requested and regular mail to the respondent's
last known address. If by the first Court hearing service is not achieved,
then notice shall be issued by publication in accordance with NHBPCR
Chapter 5 - Court Rules of Civil Procedure, Section 5(D) Service of
Process - Notice by Posting or Publication. If the respondent has
been served with notice of the hearing and fails to appear, the petitioner
has no further requirement to serve the respondent with the final
order entered by the Court at the hearing.
Each protection order granted and each order issued shall be
forwarded by fax or e-mail by the Clerk of the Court within twenty-four
(24) hours to the NHBP Police Department and Calhoun County Circuit
Court, or any other necessary jurisdiction for entry into the state-wide
data system. The Police Department shall make available to each officer
information as to the existence and status of each such order.
