SF 2498

as introduced - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to domestic abuse; providing that ex parte 
  1.3             orders for protection and temporary restraining orders 
  1.4             are effective upon a referee's signature; amending 
  1.5             Minnesota Statutes 2002, section 518B.01, subdivision 
  1.6             7; Minnesota Statutes 2003 Supplement, section 
  1.7             609.748, subdivision 4. 
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9      Section 1.  Minnesota Statutes 2002, section 518B.01, 
  1.10  subdivision 7, is amended to read: 
  1.11     Subd. 7.  [EX PARTE ORDER.] (a) Where an application under 
  1.12  this section alleges an immediate and present danger of domestic 
  1.13  abuse, the court may grant an ex parte order for protection and 
  1.14  granting relief as the court deems proper, including an order:  
  1.15     (1) restraining the abusing party from committing acts of 
  1.16  domestic abuse; 
  1.17     (2) excluding any party from the dwelling they share or 
  1.18  from the residence of the other except by further order of the 
  1.19  court; 
  1.20     (3) excluding the abusing party from the place of 
  1.21  employment of the petitioner or otherwise limiting access to the 
  1.22  petitioner by the abusing party at the petitioner's place of 
  1.23  employment; and 
  1.24     (4) continuing all currently available insurance coverage 
  1.25  without change in coverage or beneficiary designation. 
  1.26     (b) A finding by the court that there is a basis for 
  2.1   issuing an ex parte order for protection constitutes a finding 
  2.2   that sufficient reasons exist not to require notice under 
  2.3   applicable court rules governing applications for ex parte 
  2.4   relief. 
  2.5      (c) Subject to paragraph (d), an ex parte order for 
  2.6   protection shall be effective for a fixed period set by the 
  2.7   court, as provided in subdivision 6, paragraph (b), or until 
  2.8   modified or vacated by the court pursuant to a hearing.  When 
  2.9   signed by a referee, the ex parte order becomes effective upon 
  2.10  the referee's signature.  Upon request, a hearing, as provided 
  2.11  by this section, shall be set.  Except as provided in paragraph 
  2.12  (d), the respondent shall be personally served forthwith a copy 
  2.13  of the ex parte order along with a copy of the petition and, if 
  2.14  requested by the petitioner, notice of the date set for the 
  2.15  hearing.  If the petitioner does not request a hearing, an order 
  2.16  served on a respondent under this subdivision must include a 
  2.17  notice advising the respondent of the right to request a 
  2.18  hearing, must be accompanied by a form that can be used by the 
  2.19  respondent to request a hearing and must include a conspicuous 
  2.20  notice that a hearing will not be held unless requested by the 
  2.21  respondent within five days of service of the order.  
  2.22     (d) Service of the ex parte order may be made by published 
  2.23  notice, as provided under subdivision 5, provided that the 
  2.24  petitioner files the affidavit required under that subdivision.  
  2.25  If personal service is not made or the affidavit is not filed 
  2.26  within 14 days of issuance of the ex parte order, the order 
  2.27  expires.  If the petitioner does not request a hearing, the 
  2.28  petition mailed to the respondent's residence, if known, must be 
  2.29  accompanied by the form for requesting a hearing and notice 
  2.30  described in paragraph (c).  Unless personal service is 
  2.31  completed, if service by published notice is not completed 
  2.32  within 28 days of issuance of the ex parte order, the order 
  2.33  expires. 
  2.34     (e) If the petitioner seeks relief under subdivision 6 
  2.35  other than the relief described in paragraph (a), the petitioner 
  2.36  must request a hearing to obtain the additional relief. 
  3.1      (f) Nothing in this subdivision affects the right of a 
  3.2   party to seek modification of an order under subdivision 11. 
  3.3      [EFFECTIVE DATE.] This section is effective August 1, 2004. 
  3.4      Sec. 2.  Minnesota Statutes 2003 Supplement, section 
  3.5   609.748, subdivision 4, is amended to read: 
  3.6      Subd. 4.  [TEMPORARY RESTRAINING ORDER.] (a) The court may 
  3.7   issue a temporary restraining order ordering the respondent to 
  3.8   cease or avoid the harassment of another person or to have no 
  3.9   contact with that person if the petitioner files a petition in 
  3.10  compliance with subdivision 3 and if the court finds reasonable 
  3.11  grounds to believe that the respondent has engaged in 
  3.12  harassment.  When a petition alleges harassment as defined by 
  3.13  subdivision 1, paragraph (a), clause (1), the petition must 
  3.14  further allege an immediate and present danger of harassment 
  3.15  before the court may issue a temporary restraining order under 
  3.16  this section.  When signed by a referee, the temporary order 
  3.17  becomes effective upon the referee's signature. 
  3.18     (b) Notice need not be given to the respondent before the 
  3.19  court issues a temporary restraining order under this 
  3.20  subdivision.  A copy of the restraining order must be served on 
  3.21  the respondent along with the order for hearing and petition, as 
  3.22  provided in subdivision 3.  If the respondent is a juvenile, 
  3.23  whenever possible, a copy of the restraining order, along with 
  3.24  notice of the pendency of the case and the time and place of the 
  3.25  hearing, shall also be served by mail at the last known address 
  3.26  upon any parent or guardian of the juvenile respondent who is 
  3.27  not the petitioner.  A temporary restraining order may be 
  3.28  entered only against the respondent named in the petition.  
  3.29     (c) The temporary restraining order is in effect until a 
  3.30  hearing is held on the issuance of a restraining order under 
  3.31  subdivision 5.  The court shall hold the hearing on the issuance 
  3.32  of a restraining order if the petitioner requests a hearing.  
  3.33  The hearing may be continued by the court upon a showing that 
  3.34  the respondent has not been served with a copy of the temporary 
  3.35  restraining order despite the exercise of due diligence or if 
  3.36  service is made by published notice under subdivision 3 and the 
  4.1   petitioner files the affidavit required under that subdivision. 
  4.2      (d) If the temporary restraining order has been issued and 
  4.3   the respondent requests a hearing, the hearing shall be 
  4.4   scheduled by the court upon receipt of the respondent's 
  4.5   request.  Service of the notice of hearing must be made upon the 
  4.6   petitioner not less than five days prior to the hearing.  The 
  4.7   court shall serve the notice of the hearing upon the petitioner 
  4.8   by mail in the manner provided in the Rules of Civil Procedure 
  4.9   for pleadings subsequent to a complaint and motions and shall 
  4.10  also mail notice of the date and time of the hearing to the 
  4.11  respondent.  In the event that service cannot be completed in 
  4.12  time to give the respondent or petitioner the minimum notice 
  4.13  required under this subdivision, the court may set a new hearing 
  4.14  date. 
  4.15     (e) A request for a hearing under this subdivision must be 
  4.16  made within 45 days after the temporary restraining order is 
  4.17  issued. 
  4.18     [EFFECTIVE DATE.] This section is effective August 1, 2004.