§ 5-404. Hearing; service of process; period of relief.
A. A copy of a petition for a protective order, notice of hearing and a copy of any emergency ex parte order issued by the Court shall be served upon the defendant in the same manner as a bench warrant. Any fee for service of a petition for protective order, notice of hearing, and emergency ex parte order shall only be charged pursuant to Section 5-402(C) and, if charged, shall be the same as the officer’s service fee plus mileage expenses.
1. Emergency ex parte orders shall be given priority for service and can be served twenty-four (24) hours a day when the location of the defendant is known. When service cannot be made upon the defendant by a police officer, the police officer may contact another law enforcement officer or a private investigator or private process server to serve the defendant.
2. An emergency ex parte order, a petition for protective order, and a notice of hearing shall have validity throughout the territorial jurisdiction of the Osage Nation, and may be transferred to any law enforcement jurisdiction to effect service upon the defendant.
3. The return of service shall be submitted by the police department in the Court where the petition, notice of hearing or order was issued.
4. When the defendant is a minor child who is ordered removed from the residence of the victim, in addition to those documents served upon the defendant, a copy of the petition, notice of hearing and a copy of any ex parte order issued by the Court shall be delivered with the child to the caretaker of the place where such child is taken.
B. Within twenty (20) days of the filing of the petition for a protective order, the Court shall schedule a full hearing on the petition, if the Court finds sufficient grounds within the scope of the Act codified in this section stated in the petition to hold such a hearing, regardless of whether an emergency ex parte order has been previously issued, requested or denied. Provided, however, when the defendant is a minor child who has been removed from the residence, the Court shall schedule a full hearing on the petition within seventy-two (72) hours, regardless of whether an emergency ex parte order has been previously issued, requested or denied.
1. The Court may schedule a full hearing on the petition for a protective order within seventy-two (72) hours when the Court issues an emergency ex parte order suspending child visitation rights due to physical violence or threat of abuse.
2. If service has not been made on the defendant at the time of the hearing, the Court shall, at the request of the petitioner, issue a new emergency order reflecting a new hearing date and direct service to issue.
3. A petition for a protective order shall, upon the request of the petitioner, renew every twenty (20) days with a new hearing date assigned until the defendant is served. A petition for a protective order shall not expire unless the petitioner fails to appear at the hearing or fails to request a new order. A petitioner may move to dismiss the petition and emergency or final order at any time; however, a protective order must be dismissed by Court order.
4. Failure to serve the defendant shall not be grounds for dismissal of a petition or an ex parte order unless the victim requests dismissal or fails to appear for the hearing thereon.
C. At the hearing, the Court may impose any terms and conditions in the protective order that the Court reasonably believes are necessary to bring about the cessation of domestic abuse against the victim or stalking or harassment of the victim or the immediate family of the victim and may order the defendant to obtain domestic abuse counseling or treatment in a program at the expense of the defendant.
1. If the Court grants a protective order and the defendant is a minor child, the Court shall order a preliminary inquiry in a juvenile proceeding to determine further Court action against a juvenile defendant.
D. Final protective orders authorized by this section shall be on a standard form developed by the Administrative Office of the Courts.
E. After notice and hearing, protective orders authorized by this section may require the plaintiff or the defendant or both to undergo treatment or participate in the Court-approved counseling services necessary to bring about cessation of domestic abuse against the victim.
1. Either party or both may be required to pay all or any part of the cost of such treatment or counseling services. The Court shall not be responsible for such cost.
F. When necessary to protect the victim and when authorized by the Court, protective orders granted pursuant to the provisions of this section may be served upon the defendant by a police officer, or other officer whose duty it is to preserve the peace.
G. Any protective order issued pursuant to this section shall be for a fixed period not to exceed a period of five years unless extended, modified, vacated or rescinded upon motion by either party or if the Court approves any consent agreement entered into by the plaintiff and defendant; provided, if the defendant is incarcerated, the protective order shall remain in full force and effect during the period of incarceration. The period of incarceration, in any jurisdiction, shall not be included in the calculation of the five-year time limitation.
1. The Court shall notify the parties at the time of the issuance of the protective order of the duration of the protective order.
2. Upon the filing of a motion by either party to modify, extend, or vacate a protective order, a hearing shall be scheduled and notice given to the parties. At the hearing, the issuing Court may take such action as is necessary under the circumstances.
3. If a child has been removed from the residence of a parent or custodial adult because of domestic abuse committed by the child, the parent or custodial adult may refuse the return of such child to the residence unless, upon further consideration by the Court in a juvenile proceeding, it is determined that the child is no longer a threat and should be allowed to return to the residence.
H. It shall be unlawful for any person to knowingly and willfully seek a protective order against a spouse or ex-spouse pursuant to the Act codified in this section for purposes of harassment, undue advantage, intimidation, or limitation of child visitation rights in any divorce proceeding or separation action without justifiable cause.
1. The violator shall, upon conviction thereof, be guilty of a misdemeanor punishable by imprisonment in the county jail for a period not exceeding one year or by a fine not to exceed Five Thousand Dollars ($5,000.00), or by both such fine and imprisonment.
I. A protective order issued under the Act codified in this section shall not in any manner affect title to real property, purport to grant to the parties a divorce or otherwise purport to determine the issues between the parties as to child custody, visitation or visitation schedules, child support or division of property or any other like relief, except child visitation orders may be temporarily suspended or modified to protect from threats of abuse or physical violence by the defendant or a threat to violate a custody order. Orders not affecting title may be entered for good cause found to protect an animal owned by either of the parties or any child living in the household.
1. When granting any protective order for the protection of a minor child from violence or threats of abuse, the Court shall allow visitation only under conditions that provide adequate supervision and protection to the child while maintaining the integrity of a divorce decree or temporary order.
J. A Court shall not issue any mutual protective orders.
1. If both parties allege domestic abuse by the other party, the parties shall do so by separate petitions. The Court shall review each petition separately, in an individual or a consolidated hearing, and grant or deny each petition on its individual merits. If the Court finds cause to grant both motions, the Court shall do so by separate orders and with specific findings justifying the issuance of each order.
2. The Court may only consolidate a hearing if:
a. The Court makes specific findings that:
i. Sufficient evidence exists of domestic abuse, stalking, harassment or rape against each party, and
ii. Each party acted primarily as aggressors; and
b. The defendant filed a petition with the Court for a protective order no less than three days, not including weekends or holidays, prior to the first scheduled full hearing on the petition filed by the plaintiff; and
c. The defendant had no less than forty-eight (48) hours notice prior to the full hearing on the petition filed by the plaintiff.
K. The Court may allow a plaintiff or victim to be accompanied by a victim support person at Court proceedings. A victim support person shall not make legal arguments; however, a victim support person who is not a licensed attorney may offer the plaintiff or victim comfort or support and may remain in close proximity to the plaintiff or victim. ONCA 12-52, eff. Apr. 19, 2012; ONCA 23-48, eff. Apr. 20, 2023.