LEGAL REMEDIES UNDER MISSOURI LAW
THE MISSOURI BAR YOUNG LAWYERS' SECTION
This publication is funded in part by a grant from the Missouri Lawyer Trust Account Foundation and is intended to provide the public with law-related information. It is not intended to render legal advice. The Foundation and its board of directors are not responsible for any information or representations provided herein.
Copyright 1992 The Missouri Bar
SEEKING A LEGAL REMEDY FOR ABUSE OF CHILDREN
THE CHILD PROTECTION ORDERS ACT §§ 455.500, ET SEQ., RSMo
The Child Protection Orders Act offers protection to children who are being abused by someone who lives with them or has lived with them. This law allows the parent or guardian of an abused child to obtain an Order of Protection, which orders the abuser to stop the abuse and which can also order the abuser out of the home or from having any contact with the child victim under certain conditions. The order is enforced by the police, who may arrest the abuser when the order is violated. Obtaining a child Order of Protection is a two-step process. First, you must file a petition with the Clerk of the Court at the city or county courthouse. The petition is reviewed by a judge who can issue an Ex Parte Order of Protection. The Ex Parte Order is a temporary order that provides protection from abuse for up to 15 days. Upon your request, the judge can also include temporary orders for the abuser to stay away from the family home or from having any contact with the child and for you to have temporary custody of your minor children.
Second, you must attend a full hearing where a judge may grant a Full Order of Protection which is valid for up to 180 days and is renewable. At the full hearing, the judge may confirm the orders issued in the Ex Parte Order and grant additional orders regarding child support, maintenance (financial support for an adult petitioner who is married to the abuser), custody, visitation rights, and other matters.
The Order of Protection is probably the least expensive and fastest way for you to get legal protection from abuse for your child under Missouri law. You do not need a lawyer to get an Order of Protection. An order does not ask for a separation or divorce, nor does it bring criminal charges against the abuser. An order is a legal remedy which is enforced by the police to protect your family from being abused. (top)
WHO CAN GET A CHILD ORDER OF PROTECTION?
You (Petitioner) can get a Child Order of Protection if: You are a parent or guardian of a child who has been abused and who is under 18 years old; or
You are a guardian ad litem or court-appointed special advocate appointed for the child victim; or
You are a juvenile officer. The Abuser (Respondent) must be a present or former adult household member, meaning the abuser:
a. is eighteen (18) years of age or older; and
b. resided with the child in the same dwelling unit.
YOU CANNOT FILE FOR A CHILD ORDER OF PROTECTION IF ANY PRIOR ORDER REGARDING CUSTODY OF THE CHILD IS PENDING OR HAS BEEN MADE. (top)
WHAT KIND OF ABUSIVE BEHAVIOR DOES THE ORDER OF PROTECTION PREVENT?
The purpose of the Order of Protection is to prevent "abuse." Relief may be sought by filing a verified petition when a child has been subject to "abuse" by a present or former "adult household member." "Abuse" is defined as "any physical injury, sexual abuse or emotional abuse inflicted on a child, other than by accidental means by an adult household member," except that reasonable discipline is not abuse.(top)
WHERE DO I GO TO GET THE ORDER OF PROTECTION?
You can file a petition for an Order of Protection in the county courthouse:
- Where the child resides; or
- Where the abuse occurred; or
- Where the person against whom you are requesting protection, the respondent, may be served.
For specific information about where to file in your county, call Advocate Services for Abused Women at 314/454-6940 or 1-800-392-0268, or the Circuit Clerk at your county courthouse. When you go to the courthouse, ask for the clerk who handles Child Orders of Protection. The clerk in the courthouse is required by law to help you fill out the petition and explain the procedures for filing all forms and pleadings necessary to present your petition to the court. (top)
WHAT IS THE PROCEDURE FOR FILING A CHILD ORDER OF PROTECTION?
You can file a petition for a Child Order of Protection usually in the Adult Abuse or Circuit Clerk's office of your county courthouse. Your child must be in immediate danger from a past or former adult household member in order to file the petition for the order. The petition will provide information to the judge about the abuse that has occurred, the child, the respondent (the abuser), and the relief you seek.
Some counties state that there will be a filing fee to file for the order; however, you are not required to pay the cost at the time of filing. Depending upon your income, the filing fee may be waived. Usually, the court clerk will provide you with a cost waiver form and a petition to fill out. In the petition you will state the allegations of abuse against your child by the abuser and the relief that you are requesting.
Depending on the county in which you live, you may fill out the petition yourself or talk to a juvenile officer or prosecuting attorney about the abuse of your child. Also, depending on the county in which you live, a "commitment" from the local Division of Family Services may be required before you are granted the Child Order of Protection. A commitment means that the Division of Family Services agrees to provide "appropriate social services to the family or household members."
The judge, after speaking with you, will decide whether to grant the Ex Parte Child Order of Protection. Ex Parte means by one party only without notice to the respondent. If the judge does grant the Ex Parte Order, it will be on a temporary basis and the abuser will then be served with the petition and Ex Parte Order. You will also be given a date within two weeks to return to the court for a hearing for a permanent Child Order of Protection, at which time the abuser may appear and answer the allegations against him or her. If after the hearing, the judge grants a Full Order of Protection, it may last up to 180 days. (top)
WHEN CAN I GET AN ORDER OF PROTECTION?
The law states that you should be able to get an Ex Parte Order at any time, day or night, seven days a week. If possible, you should try to go to court during the weekdays. On weekends and holidays it may be difficult to obtain an order because the courthouse may be closed or have limited hours, so try to call the courthouse first to find out which judge is on duty. If you are unable to contact the clerk or judge, call the police or sheriff in your jurisdiction. They should be able to tell you how to contact the clerk or judge on duty so that you may file a verified petition with the available circuit or associate circuit judge. If you go during a weekday, try to avoid going to the courthouse around the lunch hour or in the afternoon after 3:30 p.m., when judges may not be available. It takes time to fill out the petition and you may have to wait to see the judge. If you bring children with you, anticipate that they will have to wait for a long period of time. (top)
WHAT OTHER THINGS CAN THE ORDER OF PROTECTION DO FOR A CHILD VICTIM?
It is extremely important that you understand and know that the judge can grant for your child at the hearing the Full Order of Protection BEFORE you fill out your petition for an Order of Protection, so that you remember to ask for ALL possible relief at the time of filing the petition. At the full hearing, the judge can do the following in a Full Order of Protection: Temporarily enjoin the respondent from abusing, threatening to abuse, molesting, or disturbing the peace of the child victim;
- Temporarily enjoin the respondent from entering the family home of the child victim, except as authorized by the court; and
- Temporarily enjoin the respondent from having any contact with the child victim, except as authorized by the court.
When the court has issued a Full Order of Protection after a hearing, the court may, in addition:
- Award custody of any minor child of the parties when:
a. the court has jurisdiction over the child;
b. no prior order regarding custody is pending or has been made; and
c. the best interests of the child require such order;
- Award visitation;
- Award child support where appropriate;
- Award maintenance to petitioner when petitioner and respondent are lawfully married;
- Order respondent to make rent or mortgage payments, if respondent has a duty to support the child victim or other dependent household members;
- Order the respondent to participate in court-approved counseling designed to help child abusers stop violent behavior;
- Order respondent to pay costs of treatment for himself or herself and/or the child victim;
- Order the respondent to pay for housing and other services provided to the victim by a shelter for victims of domestic violence; and
- A court may also order a respondent to pay a reasonable amount for the cost to you of filing for the Order of Protection and for your attorney's fees.
IN THE PETITION YOU MUST STATE WHICH ORDERS YOU WANT THE JUDGE TO GRANT The judge usually grants a temporary Order for Child Protection and custody at the Ex Parte Hearing. All other orders listed above may be granted at the Full Hearing. Regardless of when the judge chooses to grant orders, you must remember to ask for these orders when you fill out the petition papers. If the orders you want are not in the petition, the judge may not be able to consider them at the Full Hearing and may not be able to include them in the Full Order of Protection.
On page 2, under THE CHILD PROTECTION ORDERS ACT, the section number should read "§§ 455.500, ET SEQ., RSMo". (top)
Source - The Missouri Bar