What is an Injunction and How Will One Affect Your Family Court Case?
An injunction is a permanent court order which prohibits contact between individuals and can involve removing someone from a home or apartment. Wisconsin law provides a few different types of injunctions.1 The two most common injunctions that we see as family law attorneys are domestic violence injunctions and harassment injunctions.
To initiate an injunction proceeding, you must file a petition and other required documents. If sufficient facts are presented at the time of filing, a temporary restraining order or TRO will be granted which could include an order directing the police to remove someone from the home immediately. The TRO is in effect until the scheduled injunction hearing; however, it does not take effect until it is served upon the other party.
If you are the party a TRO is filed against, you must be personally served with the TRO and other filed documents. For example, in Dane County and in most other counties, service of the documents is accomplished through the Sheriff’s Department. An officer will personally hand you the documents. The TRO will identify the actions you are temporarily prohibited from engaging in against the filing party and the date for the injunction hearing.
Depending on your local court practice, the injunction hearing will be held before a Circuit Court Commissioner or Judge, usually within a week or two after the initial filing. At the hearing, the Court will have the opportunity to hear from both parties in a traditional courtroom setting. The party who filed the petition (the Petitioner) will be able to present evidence to show that the other party (the Respondent) engaged in prohibited conduct against them.
The Respondent will also be permitted to present his/her defense. If the Court concludes that the Petitioner has met his/her burden, an injunction will be granted prohibiting certain conduct by the Respondent. Additionally, the Court will identify the length of time the injunction will be in effect (typically not more than four years except under special circumstances). The court may, or under some circumstances, will be required to, order a firearm restriction preventing the Respondent from possession of a firearm during the effective period of the injunction.
How does this affect your family court action?
Entry of any type of injunction will be directly relevant to a family court when legal custody and physical placement of a child is in dispute. The entry of an injunction will prohibit the Respondent from engaging in certain conduct that impacts co-parenting. For example, an injunction may prevent the parents from communicating directly with each other or may prevent them from being in the same location together. Entry of any injunction can raise significant concerns about the safety of a child and the child’s other parent, thereby potentially having a significant impact on issues of custody and placement. The court is required to consider domestic violence and child abuse in deciding legal custody and physical placement of a child. When ultimately determining what is in the best interest of the child, the Court’s decision may include a grant of sole legal custody to the other parent and/or limiting the Respondent’s placement time with the child.
We often hear people say they do not care if any injunction is issued against them since they do not want to have contact with that person anyway. In addition to the implications on custody and placement, since violations of an injunction are charged as a crime, it is important to take them seriously.
If you are considering filing for an injunction or you were served with injunction related court documents, do not wait to consult one of our experienced attorneys. A good attorney will be able to address issues surrounding the injunction proceeding and its impact on custody and placement of your child.
1 This article will focus on harassment and domestic abuse; however, child abuse and juvenile (one minor child versus another minor child) injunctions are also available.