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IC 34-26-2
Chapter 2. Protective Order to Prevent Abuse
IC 34-26-2-1
Sec. 1. A person may petition any court of record for
a protective order on behalf of that person or a member of the petitioner's household.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-2
Sec. 2. The petition:
(1) must include the name of the
petitioner and the name and address (if known) of the respondent;
(2) must include any allegation
concerning the date or manner of specific acts or feared acts of abuse, harassment,
or disruption of the peace of the petitioner or members of the petitioner's household
or any allegations concerning specific damage to or the fear of damage to any
property of the petitioner;
(3) must include a request that,
if the court grants the protective order, the court shall order the respondent:
(A) to
refrain from abusing, harassing, or disturbing the peace of the petitioner, by
either direct or indirect contact;
(B) to
refrain from abusing, harassing, or disturbing the peace of a member of the petitioner's
household, by either direct or indirect contact;
(C) to
refrain from entering the property of the petitioner, jointly owned or leased
property of the petitioner and respondent if the respondent is not the sole owner
or lessee, or any other property as specifically described in the petition;
(D) to
refrain from damaging any property of the petitioner;
(E) if
the petitioner and respondent are married and if a proceeding for dissolution
of marriage or legal separation is not pending:
(i)
to be evicted from the dwelling of the petitioner if the respondent is not the
sole owner or lessee of the petitioner's dwelling;
(ii)
to not transfer, encumber, damage, conceal, or otherwise dispose of property jointly
owned with the petitioner or that is an asset of the marriage;
(iii)
to pay child support to the custodian of any minor children of the parties alone
or with the other party;
(iv)
to pay maintenance to the other party; or
(v)
to perform a combination of acts listed in items (i) through (iv);
(4) must be sworn to by the petitioner;
(5) must include a request that
the court set a date for a protective order hearing under this chapter;
(6) must be accompanied by a confidential
form concerning protective orders prescribed or approved by the division of state
court administration; and
(7) may include a request that
the court order counseling or other social services, including domestic violence
education, for the petitioner, the respondent, or both.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-3
Sec. 3. (a) This section applies if an emergency exists
concerning the relief requested in section 2(3)(A), 2(3)(B), 2(3)(C), or 2(3)(D)
of this chapter.
(b) The petitioner must include a statement in the petition
explaining why the emergency exists and request the court to immediately issue
an emergency protective order that requires the respondent to immediately refrain
from doing the acts described in section 2(3)(A) through 2(3)(D) of this chapter
or comply with the order.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-4
Sec. 4. The court may:
(1) order the clerk of the court
to waive any filing fees required under this chapter if the petitioner demonstrates
by affidavit that the petitioner is unable to pay the fees due to all relevant
circumstances; and
(2) order filing fees to be paid
by the respondent after a hearing held under this chapter.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-5
Sec. 5. If a person requests a court to issue an emergency
protective order, the court shall immediately review the petition ex parte. If
the court finds that there is probable cause to believe that the petitioner, a
member of the petitioner's household, or the petitioner's property was or is in
danger of being abused or threatened with abuse by the respondent, the court shall:
(1) issue an emergency protective
order described in section 6 of this chapter; and
(2) set a date for the protective
order hearing not more than thirty (30) days after the date the petition is filed
with the court.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-6
Sec. 6. The emergency protective order issued under section
5 of this chapter may direct the respondent to refrain from:
(1) abusing, harassing, or disturbing
the peace of the petitioner by either direct or indirect contact;
(2) abusing, harassing, or disturbing
the peace of a member of the petitioner's household, by either direct or indirect
contact;
(3) entering the property of the
petitioner or any other property as specifically described in the petition; or
(4) damaging any property of the
petitioner.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-7
Sec. 7. An emergency protective order issued under section
5 of this chapter (or IC 34-4-5.1-2.3 before its repeal) expires:
(1) sixty (60) days after the
date the emergency protective order is issued; or
(2) the date a court issues an
order stating that the emergency protective order has expired; whichever occurs
first.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-8
Sec. 8. When a court issues an emergency protective order
under section 5 of this chapter that directs the respondent to refrain from the
acts described in section 6(1), 6(2), or 6(3) of this chapter:
(1) the clerk of the court shall
comply with IC 5-2-9; and
(2) the petitioner shall file
a confidential form prescribed or approved by the division of state court administration
with the clerk.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-9
Sec. 9. When a court issues an order terminating an emergency
protective order, the clerk of the court shall comply with IC 5-2-9-6(g).
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-10
Sec. 10.
(a) A court may not issue a joint or mutual protective
order, an emergency protective order, or a restraining order under:
(1) section 2(3)(A) of this chapter;
(2) section 2(3)(B) of this chapter;
(3) section 2(3)(C) of this chapter;
or
(4) section 5 of this chapter.
(b) If both parties allege injury, the parties shall do
so by separate motions. The trial court shall review each motion separately, and
grant or deny each motion on its individual merits. If the trial court finds cause
to grant both motions, the court shall do so by separate orders and with specific
findings justifying the issuance of each order.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-11
Sec. 11.
(a) When a petition is filed, the clerk shall issue a summons
to appear at a hearing to the respondent that:
(1) gives notice of the date,
time, and place of the hearing; and
(2) informs the respondent that
the respondent must appear before the court to answer the petition.
(b) The clerk shall serve the respondent with the summons
to appear in accordance with Rule 4.1 of the Rules of Trial Procedure.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-12
Sec. 12. A court shall set a date for a hearing concerning
a petition described in section 2 of this chapter not more than thirty (30) days
after the date the petition is filed with the court. At the hearing, if at least
one (1) of the allegations described in the petition is proved by a preponderance
of the evidence, the court:
(1) shall order the respondent:
(A) to
refrain from abusing, harassing, or disturbing the peace of the petitioner, by
either direct or indirect contact;
(B) to
refrain from abusing, harassing, or disturbing the peace of a member of the petitioner's
household, by either direct or indirect contact;
(C) to
refrain from entering the property of the petitioner, jointly owned or leased
property of the petitioner and the respondent if the respondent is not the sole
owner or lessee, or any other property as specifically described in the petition;
(D) to
refrain from damaging any property of the petitioner; and
(E) if
the petitioner and respondent are married and if a proceeding for dissolution
of marriage or legal separation is not pending:
(i)
to be evicted from the dwelling of the petitioner if the respondent is not the
sole owner or lessee of the petitioner's dwelling;
(ii)
to not transfer, encumber, damage, conceal, or otherwise dispose of property jointly
owned with the petitioner or that is an asset of the marriage;
(iii)
to pay child support to the custodian of any minor children of the parties alone
or with the other party;
(iv)
to pay maintenance to the other party; or
(v)
to perform a combination of the acts described in items (i) through (iv);
(2) may order the respondent to
refrain from possessing a firearm (as defined in IC 35-47-1-5) during a period
not longer than the period that the respondent is under the protective order if
the court finds by clear and convincing evidence that the respondent poses a significant
threat of inflicting serious bodily injury to the petitioner or a member of the
petitioner's household or family; and
(3) may order counseling or other
social services, including domestic violence education, for the petitioner or
the respondent, or both, and may order the respondent to pay the costs of obtaining
counseling or other social services for the petitioner or the respondent, or both.
If the court prohibits the respondent from possessing a firearm under subdivision
(2), the court shall notify the state police department of the restriction. The
court may also order the confiscation under IC 35-47-3 of any firearms that
the court finds the respondent to possess during the period that the protective
order is in effect.
As added by P.L.1-1998, SEC.22. Amended by P.L.188-1999, SEC.4; P.L.14-2000,
SEC.70.
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IC 34-26-2-13
Sec. 13. Any part of a court order authorized under section
12 (1)(E) or 12(2) of this chapter (or IC 34-4-5.1-5(a)(1)(E) or IC 34-4-5.1-5(a)(2)
before their repeal) is issued without prejudice to the rights of the parties
or a child concerning any issues that may be decided in proceedings for dissolution
of marriage or legal separation. An order authorized under section 12 of this
chapter (or IC 34-4-5.1-5 before its repeal) expires:
(1) when:
(A) a
petition for dissolution or legal separation (with respect to the petitioner's
and the respondent's marriage) has been filed; and
(B) a
temporary restraining order issued under IC 31-15-4 (or IC 31-1-11.5-7
before its repeal) is in effect while the proceeding for marriage dissolution
or legal separation is pending; or
(2) not more than one (1) year
after the order is issued;
whichever occurs first.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-14
Sec. 14. If a protective order expires under section 13(2)
of this chapter, the court may, at the request of a party or upon the court's
own motion, extend the protective order for an additional period of not more than
one (1) year.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-15
Sec. 15. The small claims court judges in a county containing
a consolidated city may by mutual agreement assign to one (1) or more divisions
of the court exclusive jurisdiction over proceedings initiated under this chapter
(or IC 34-4-5.1 before its repeal) in the small claims court.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-16
Sec. 16. When a court issues a protective order under
section 12(1)(A), 12(1)(B), or 12(1)(C) of this chapter or an emergency protective
order under section 5 of this chapter:
(1) the clerk of the court shall
comply with IC 5-2-9; and
(2) the petitioner shall file
a confidential form prescribed or approved by the division of state court administration
with the clerk.
As added by P.L.1-1998, SEC.22.
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IC 34-26-2-17
Sec. 17.
(a) When a court issues a protective
order under this chapter (or IC 34-4-5.1 before its repeal), the court may
order the respondent to pay a reasonable amount for the cost to the moving party
of maintaining a proceeding under this chapter (or IC 34-4-5.1 before its
repeal) and for attorney's fees, including sums for legal services rendered before
the commencement of the proceedings or after entry of judgment.
(b) The court may order the amount
to be paid directly to the attorney, who may enforce the order in the attorney's
name.
As added by P.L.1-1998, SEC.22.
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Sec. 11.
(a) The clerk shall provide each person filing a petition
for the issuance of a protective order under IC 34-26-2 without the assistance
of an attorney the following information:
(1) The procedure for obtaining
a protective order.
(2) When a protective order becomes
effective.
(3) Procedures to follow when
a protective order is violated.
(b) The information required under subsection (a) must
be printed in a manner that can be easily understood by a person who is not an
attorney.
(c) The attorney general shall develop an appropriate
form to provide the information referred to in subsection (a).
