In Minnesota, a victim of domestic abuse can seek an Order for Protection [OFP] from the court, prohibiting contact from an abuser for up to two (2) years or longer.
An OFP can be granted if the court finds a person shows a present intent to inflict fear of imminent physical harm, bodily injury, or assault on a victim (from the domestic abuse statute, §518B.01 subd. 2(a)). ‘Intent’ can be inferred from a history of abusive behavior.
In seeking an OFP, a victim does not have to show an ‘overt’ act in order to prove that domestic abuse has occurred. For example, a verbal threat, or a history of verbal threats can be enough to inflict fear of imminent physical harm, bodily injury, or assault.
Be cautious, though, when raising allegations of past abusive behavior, especially when there have been past requests for relief made to the court based on similar claims. ‘Res Judicata’ is a rule which prevents a court from hearing the same claim multiple times. It applies when:
- the earlier claim involved the same set of facts
- the earlier claim involved the same parties
- there was a final judgment on the merits; and
- you had a full and fair opportunity to litigate the matter.
For example, in cases where past Harassment Restraining Order [HRO]’s were requested against an abuser, Res Judicata might be used to deny a later request for an OFP against the same person; it should not be, however. An OFP and an HRO are very different claims, involving different facts. Here are some examples of those differences:
- HRO’s require a finding of harassment; and OFP requires domestic abuse;
- ‘harassment’ and ‘domestic abuse’ are not the same thing. For example ongoing repeated phone calls, while harassing, do not amount to domestic abuse.
- HRO’s can be issued between unrelated parties; while OFP’s require that the parties have a ‘domestic relationship’.
Different claims, also mean that each has different elements, and therefore different issues are raised in an OFP and HRO case. Collateral Estoppel, like Res Judicata, is a rule prevents a court from hearing the same issue in multiple cases, it applies when:
- the issue is identical to the one raised in a prior adjudication;
- there was a final judgment on the merits;
- the same parties were involved; and
- the parties had a full and fair opportunity to be heard on the issue.
But harassment and domestic abuse, though they can be related, have different elements. For instance, fear of harm is not a necessary element of an HRO petition; whereas fear can be for an OFP, regardless of when the act happened to cause the victim’s fear. Both remedies can and should be available to victims of domestic abuse.
A victim should not be discouraged from pursuing either or both the HRO and the OFP as way to seek relief from an abuser. Having one remedy already in place, does not prohibit someone from seeking the other.
Contact Beyer & Simonson
If you are facing divorce and any of the divorce-related issues such as spousal maintenance, child support, child custody, property division, or domestic abuse matters, you need our experienced Minneapolis divorce attorneys to help you. Contact Beyer & Simonson in Edina, Minnesota today at (952) 303-6007.