Statutes | Hoh Indian Tribe Law and Order Code Title 9 ยง 1.11 | 2020
A. Petition for an Order of Protection - Availability.
1. A petition to obtain an order of protection under this Section may be filed by:
a. Any person claiming to be the victim of domestic violence,
b. Any family member or household member of a minor or disabled person claimed to be the victim of domestic violence, on behalf of the alleged victim, or
c. The Tribal Prosecutor d. Any person acting in an official capacity in the protection of a domestic violence survivor including but not limited to e.g., Domestic Violence Advocate, Adult Case Manager, Therapist, and other associated staff.
2. A petition shall allege the existence of domestic violence, and shall be verified or supported by an affidavit made under oath stating the specific facts and circumstances justifying the requested order.
3. A petition may be filed regardless of any other pending civil or criminal proceeding related to the allegations in the petition.
4. No filing fee shall be required for the filing of a petition under this section. If an alleged perpetrator has been arrested for any domestic violence offense, the Court or the arresting officer shall advise the alleged victim of the right to file a petition under this section without cost.
5. 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 an order of protection but the petition shall state whether any other action is pending between the petitioner or victim and the respondent.
6. Standard, simplified petition forms with instructions for completion shall be available to persons not represented by counsel. The Hoh Tribe&rsquos Police Department and the Tribal Court shall keep such forms and make them available upon request to victims of domestic violence.
B. Procedure for Issuing an Order of Protection.
Upon the filing of a petition for order of protection, the Court shall:
1. Immediately grant an ex-parte order of protection without bond if, based on the specific facts stated in the affidavit or the verified petition, 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 committed by the respondent, and issuance of the ex-parte order is necessary to protect the victim from further abuse.
2. Cause an ex-parte order of protection, together with notice of hearing, to be served immediately on the respondent. Service must be made by posted notice if personal service cannot be completed within twenty-four (24) hours.
3. Hold a hearing within thirty (30) days after the granting of the ex-parte order of protection to determine whether the order should be vacated, extended for an additional thirty (30) days, or modified in any respect.
4. If an ex-parte order is not granted, the court shall serve notice upon both parties and hold a hearing on the petition for order of protection within seventy-two (72) hours after the filing of the petition if notice of hearing cannot be personally served within twenty four (24) hours, the parties shall be served by posted notice, and the court shall hold a hearing on the petition within thirty (30) days after the filing of the petition.
C. Contents of an Order of Protection. An ex-parte order of protection or an order of protection entered after notice and hearing shall, when deemed appropriate by the court, include provisions:
1. Restraining the respondent from committing any acts of domestic violence.
2. Excluding the respondent from the residence of the victim, whether or not the respondent and the victim share that residence.
3. Restraining the respondent from any contact with the victim.
4. Awarding temporary custody or establishing temporary visitation rights with regard to minor children of the respondent on a basis which gives primary consideration to the safety of the claimed victim of domestic violence and the minor children:
a. 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 or family violence has occurred since the last custody determination constitutes a finding of a change in circumstances.
b. 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.
c. In determining custody and/or visitation, the court must consider the perpetrators history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person.
d. If a parent is absent or relocated because of an act of domestic 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.
e. 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
f. In a visitation order, the Court may:
1. Order an exchange of minor child to occur in a protected setting
2. Order that visitation be supervised by another person or agency
3. Order the perpetrator of domestic or family violence to abstain from possession or consumption of alcohol or controlled substance during the visitation and for 12 hours preceding the visitation
4. Order the perpetrator of domestic or family violence to pay a fee to defray the cost of supervised visitation
5. Prohibit overnight visitation
6. Require a bond from the perpetrator of domestic or family violence for the return and safety of the minor child and
7. Impose any other condition that is deemed necessary to provide for the safety of the minor child, the victim of domestic or family violence, or other family or household member.
g. Whether or not visitation is allowed, the court may order the address of the minor child and the victim to be kept confidential.
h. The Court may refer but must not order an adult who is a victim of domestic or family violence to attend counseling relating to the victims status or behavior as a victim, as a condition of receiving custody of a minor child or as a condition of visitation.
i. If the Court allows a family or household member to supervise visitation, the Court must establish conditions to be followed during visitation.
5. Ordering temporary guardianship with regard to an elder or disabled victim of domestic violence if necessary for the safety of the elder or disabled person
6. Awarding temporary use and possession of property of the respondent.
7. Restraining one or both parties 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.
8. Ordering the respondent to timely pay any existing debts of the respondent, including mortgage or rental payments, necessary to maintain the claimed victim in his/her residence.
9. Describing any prior orders of the Court of domestic-related matters which are superseded or altered by the order of protection.
10. 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 Ordinance for which civil penalties may be assessed.
11. Ordering, in the Courts discretion, any other lawful relief as it deems necessary for the protection of any claimed or potential victim of domestic violence, including orders or directives to the Hoh Tribal Police Department.
D. Duration and Modification of Order of Protection
1. The provisions of the order shall remain in effect for the period of time stated in the order, not to exceed 12 months unless extended by the court at the request of any party or at the request of the Domestic Violence Offender Treatment Program.
2. The Court in its discretion may upon request of either party or the Domestic Violence Offender Treatment Program modify an order of protection.