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A new entry by Michael D. Dittberner: New guidelines for courts in deciding whether to grant or deny petitions for orders for protection (OFP)

The Minnesota Supreme Court has issued an important decision which will significantly alter how district courts handle petitions for orders for protection (OFPs).  In Thompson v. Schrimsher, No. A16-0378, 2018 WL 627092 (Minn. Jan. 31, 2018), the Supreme Court reversed the Minnesota Court of Appeals, holding that a party petitioning for an order for protection does not have to show present harm, or an intent on the part of a respondent to do present harm.  This decision overrules court of appeals’ precedent that is more than thirty years old, such as Kass v. Kass, 355 N.W.2d 335  (Minn. App. 1984) and Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986).  Minnesota Statutes Section 518B.01, subdivision 2(a) defines domestic abuse as meaning the following acts committed by a family or household member against  a family or household member:  “(1) physical harm, bodily injury, or assault; the infliction of fear of harm of imminent physical harm,  bodily injury or assault; or (3) terroristic threats…; criminal sexual conduct…; or interference with an emergency  call….”  The Supreme Court reasoned that lack of temporal (i.e, time-conditioning) language in subdivision 2(a)(1)’s reference to physical harm, bodily injury, or assault means that the legislature did  not intend to require petitioners to show  that the risk of harm was immediate or imminent in order to obtain an OFP. Thompson v. Schrimsher, at *8.  Thus, a finding of past domestic abuse alone is sufficient to support the issuance of an OFP without the need to show a present intent  to cause or inflict fear of imminent physical harm.  Id.

The respondent in Thompson v. Schrimsher had argued that  eliminating the requirement that physical harm be “present” or “immediate” would increase the risk of district courts issuing OFPs based on single, isolated incidents of domestic abuse occurring in the distant past.  The Supreme Court stated that the respondent was overstating the risk, noting that district courts were not required to issue OFPs and that they had discretion to deny an OFP even when domestic abuse had in fact  occurred. Id at *9.  The Supreme Court noted that district courts should examine all relevant circumstances in deciding whether to grant an OFP, “includ[ing], but…not limited  to, the timing,  frequency, and severity of any alleged circumstances of ‘domestic abuse’, along with the likelihood of further abuse.” Id.  The Supreme Court also noted  that subdivision  7(a) of  section 518B.01 requires a petitioner to allege an immediate and present danger of domestic abuse before an OFP can be granted ex parte. Id at *7.

As a result of Thompson  v. Schrimsher, a petitioner seeking an OFP will no longer be unduly handicapped by the fact that the alleged abuse occurred, for example, more than six months prior to the filing of their petition.  By the same token, a respondent will  face an increased risk that their defense against an OFP will be unsuccessful.  Also, given the language  in Thompson v. Schrimsher about judicial discretion, there are increased risks that OFPs  will not  be granted even if the district court finds that domestic abuse occurred.   Parties, attorneys and judicial personnel will need to take to heart the Thompson court’s guidance about considering the  timing, frequency and severity of the alleged abuse, and likelihood of further abuse.  OFP proceedings will become more uncertain, and attorneys and parties will have to factor that uncertainty into their decisionmaking.




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