Table of Contents

• A quick overview of the legal system
• What is the legal definition of domestic violence in Idaho?
• What are protection orders? What types are there?
• Who can get a protection order?
• How can a protection order help me?
• How much does it cost to get a protection order? Do I need a lawyer?
• What steps do I take to get a protection order?
• What will I have to prove at the hearing?
• What should I do before the hearing to prepare my case?
• What should I do on the day of the hearing?
• What will happen in the courtroom?
• What should I do when I leave the courtroom?
• What can I do if the abuser violates the order?
• How do I change or extend the protection order?
• What happens if I move?
• What if I don't qualify for a protection order?

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A quick overview of the legal system

The Idaho legal system is divided into two areas: civil law and criminal law.

One of the most confusing things about the legal system is the difference between civil cases and criminal cases. In domestic violence situations, there may be both civil and criminal cases going on at the same time as a result of the same violent act. The major differences have to do with who takes the case to court and the reason for the case.

• Under civil law, one person sues another for a private wrong. In a civil domestic violence action, you are asking the court to resolve the conflict between you and your abuser. You are not asking the court to punish that person for committing a crime. The protection orders we talk about on this page are under the civil law system.
• The criminal law system handles all cases that involve violations of criminal law such as harassment, assault, murder, and theft. A criminal complaint involves an attorney working for the state (district attorney or prosecutor) charging your abuser with a crime.

You may want to pursue both civil and criminal action. However, once you file a criminal complaint, only the prosecutor can decide to drop it. You may also be forced to testify.

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What is the legal definition of domestic violence in Idaho?

In Idaho, domestic violence happens when any of the following things happen:

• physical injury
• sexual abuse
• forced imprisonment
• threatening to commit any of the above acts

AND your abuser is:

• your family member,
• your household member, or
• someone who you date or used to date.

Domestic violence is a serious crime. Idaho has laws that treat spousal abuse more harshly than regular battery -- there are more serious penalties for spousal abuse.

To read the exact wording of the statute defining domestic violence, please see Section 39-6303 Definitions on our Legal Statutes page. 1

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What are protection orders? What types are there?

A protection order is a written court order. It is designed to order your abuser not to be violent and harassing in any way, and to protect you and your family from the abuser.

In Idaho, there are two types of protection orders for domestic violence victims: temporary orders and "permanent" orders.  

1. Temporary Orders. Temporary orders are issued when a person is in immediate danger. You have to go to court to ask for a temporary order. A judge can grant one without your abuser being in court to argue his side of the case. However, temporary orders are granted only if you can prove to the judge - through your story or evidence - that you need a temporary order to prevent immediate harm to you or your family.

A judge will assume that, if you are asking for a temporary or emergency order, you will also want a permanent order.

The order is not enforceable until the abuser is “served” with it. An abuser is served when he has been given paperwork that tells him what your temporary order says and about any upcoming hearings.  In general, a temporary order will lasts for 14 days, or until you have a court hearing for a permanent order.

2. Permanent Orders. "Permanent" orders offer longer-term protection. A judge can only give you a permanent order after a court hearing in which you and the abuser both have a chance to tell your sides of the story.

Even though they are called permanent orders, they don't automatically last forever. A permanent order generally lasts for three months.  Judges have been known to grant longer protection orders, but that depends on your case. Generally, you can renew a protection order for one year periods if you can show you still need protection. You may be able to have it renewed without a hearing if your abuser does not object to it. See How do I change or extend the protection order? below.2

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Who can get a protection order?

You may file for a protection order if you have been the victim of abuse by:

• Your spouse or former spouse
• Your parent
• Your brother or sister
  Your grandparent
• Family members related to you by blood, adoption, or marriage
• Anyone with whom you have had a child even if you were not married
• Anyone you live with or formerly lived with
• Anyone you are or were in a dating relationship with

If you are under 18, you can file for a protection order. You can file on your own, or your parent or guardian can file on your behalf.

In Idaho, you can apply for a protection order against a current or former same-sex partner. 3

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How can a protection order help me?

Protection orders may:

• Order abuser to stop abusive behavior
• Ban the abuser from a home he shares with you or from your home
• Order the abuser to seek counseling or treatment
• Order the abuser to stay away from you and not contact you
• Order your abuser to hand over any firearms he has to the authorities and forbid him from buying firearms
• Grant you temporary custody of your children
• Order your abuser to pay your attorney's fees

Note: Whether a judge orders any or all of the above depends on the facts of your case.

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How much does it cost to get a protection order? Do I need a lawyer?

There is no cost to get a protection order.

While you do not need a lawyer to file for a protection order, but it may be better to have one.  If you decide to hire a private attorney, that will cost you money.

If your abuser has a lawyer, you should try to get one too. Even if your abuser does not have a lawyer, it may be a good idea to contact a lawyer to make sure that your legal rights are protected.

A domestic violence organization in your area may be able to refer you to an attorney or legal aid service who will take your case for free.  Go to our ID Links & Resources page for a list of organizations in your area.

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What steps do I take to get a protection order?

Step 1:  Go to court and request a petition
Go to the courthouse for your county. In most counties you will file in the Magistrate Division, but in a few, you will file in District Court. You can find a court near you by going to our Courthouse Locations & Info page.

Find the civil court clerk and request a petition (application) for a protection order. Also tell the clerk that you want a temporary order. You can file for them at the same time. 

The clerk can give you the petition and any other forms you will need to fill out. You can also find links to online forms by going to Download Court Forms.

Remember to bring some form of identification, like your driver's license or other ID that includes your picture. It can also be helpful to bring any identifying information you have about your abuser, such as his picture, addresses where he lives and works, and a description of his car.

Step 2:  Fill out the forms
Carefully fill out the forms. Write briefly about the most recent incident of violence, using descriptive language - words like "slapping", "hitting", "grabbing", "choking", "threatening", etc. - that fits your situation. Be specific. Include details and dates, if you can. 

On these forms, you will be referred to as the "petitioner" and your abuser will be called the "respondent".

A domestic violence organization may be able to provide you with help filling out the form.  See ID Links & Resources for the location of an organization near you.

Do not sign the petition until you have shown it to a clerk. It may need to be notarized or signed in the presence of court personnel.

Step 3:  A judge will review your petition
After you finish filling out your petition, bring it to the court clerk. The clerk will forward it to a judge. The judge may want to ask you questions as s/he looks over your petition. 

After looking your petition over, the judge will decide whether or not to give you a temporary protection order.

Whether or not you get a temporary order, the judge will set a hearing date for a permanent order. You will be given papers that tell you when your hearing will be, usually within 14 days.

Step 4:  Service of process
Your abuser has to be given paperwork from the court that tells him about any temporary orders you have and information about when the hearing for a permanent order will be. When he is given that paperwork, he has been "served".

Your temporary order will not go into effect until your abuser has been served. Usually law enforcement personnel will attempt to serve the abuser in person. 

The court will send copies of the order and notice of hearing to the police or sheriff. Do not try and serve the abuser in person with the papers yourself.

If the abuser does not show up for the hearing, the judge may still  grant you a protective order, or the judge may order a new hearing date.

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What will I have to prove at the hearing?

To get a protection order against your abuser, you must:

• Prove that the abuser has committed acts of domestic violence (as defined by the law) against you or  your children. 
• Convince a judge that you need protection and the specific things you asked for in your petition.

See the next section for ways you can show the judge that you were abused.

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What should I do before the hearing to prepare my case?

First, you should prepare yourself for seeing your abuser in the courthouse. In addition, there are several steps you should take to prepare yourself for the hearing.

Contact witnesses who saw the abuse or your injuries.
Anyone can be a witness, including:

• a friend
• a family member
• an emergency room nurse
• a doctor
• a stranger who saw or heard the abuse take place
• a law enforcement officer 

Some witnesses may not come to court unless they are given a subpoena. A subpoena is a document that orders someone to come to court and testify.  Ask the court clerk about the subpoena process.  Let the judge know if the people you subpoenaed do not come to the hearing.

If your children witnessed the abuse, you may want to tell the judge that they were present. However, you should consider not having the children testify in court to avoid putting them in the uncomfortable position of possibly testifying against their other parent.

• your statements or a witness’s statements about the incident(s)
• medical reports
• police reports
• pictures of your injuries, with dates if possible
• household objects torn or broken by your abuser
• pictures of your home in disarray after an episode of domestic violence
• weapons used
• tapes of calls you may have made to 911
• certified copies of the abuser’s criminal record
• anything else to help you convince the judge you have suffered acts of domestic violence and the help and protection you're asking for

The more evidence you have, the easier it will be to get a protection order.  However, the judge will listen to your story and may give you a protection order even if you have no physical evidence or witnesses.

Tell your story in your own words, but leave out details that have nothing to do with the violence or threats of violence.  Also, rather than saying “He (or she) hit me,” tell the judge how you were hit, where on your body you were hit, and how many times.  Be specific.

You may want to mention:

• The most recent 2 incidents of violence
• The worst 2 incidents of violence
• Whether the abuser has a gun or other weapons, and
• Whether the abuser has threatened to physically hurt or kill you

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What should I do on the day of the hearing?

• While the hearing may not take very long, you should be prepared to be at the court for several hours or even all day. There may be hearings before yours. You should make child care arrangements if possible.
• Dress neatly.
• Be on time.
• Have your witnesses there and ready.  If you have subpoenaed witnesses and do not come, tell the judge.
• Speak directly to the judge; s/he will understand if you feel nervous.
• Always address the judge as “Your Honor.” 
• If your abuser does not come to the scheduled court hearing, the judge may continue with the hearing or s/he may reschedule the hearing for a later date.
  • If the judge reschedules the hearing, make sure to ask if you need to reissue or extend your temporary order (if you have one) so that you will continue to be protected you until the new hearing date.
• If your abuser comes to court with a lawyer and you do not have one, ask the judge for a “continuance” so you can look for a lawyer. A continuance is when a hearing is postponed until a later date.
  • If the judge gives you a continuance, make sure to ask if you need to reissue or extend your temporary order (if you have one).
• Once your case is called, enter the courtroom and find a seat.  It is your right to take another seat if the abuser sits next to you, and to receive help from court staff in keeping the abuser away from you.
• Stand when the judge enters and sit when the judge or bailiff asks you to.
• Relax and remain calm.  Take deep breaths if you feel yourself getting tense.  Never lose your temper in the courtroom.
• Always tell the truth. 
• If you don’t understand a question, just say so.
• If you don’t know the answer to a question, just say so.  Never make up an answer.

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What will happen in the courtroom?

• At the hearing, everyone who testifies will swear to tell the truth.
• You will tell your side of the story first.
• The judge and your abuser may ask you questions.  If you are afraid to answer any of them, tell the judge.
• When you are finished, your witnesses will take the stand.  You may ask them questions, and then the judge and the abuser will have a turn to ask them questions.
• The abuser will tell his side of the story.  It may be very different from yours.  The judge will ask him questions, and you may also ask him questions.
• The judge will make a decision after hearing both sides and considering the evidence.
• If the judge decides in your favor, the judge will sign a protection order. The protection order will have boxes checked or things written in by the judge that the abuser has been ordered to do. The judge should also include the date of expiration for the protection order.
• You will be given a copy of the order. Review it carefully before you leave the courthouse. If you have any questions about it, be sure to ask the judge or court clerk before you leave.

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What should I do when I leave the courtroom?

• Review the order before you leave the courthouse.  If something is wrong or missing, ask the clerk to correct the order before you leave.
• Make several copies of the protection order as soon as possible.
• Keep a copy of the order with you at all times.
• Inform your employer, domestic violence advocate, minister, clergy, family members, and/or your closest friends that you have a protection order in effect.
• Leave copies of the order at your work place, at your home, at the children’s school or daycare, in your car, with a sympathetic neighbor, and so on.
• Give a copy to the security guard or person at the front desk where you live and/or work.
• Give a copy of the order to anyone who is named in and protected by the order.
• If the court has not given you an extra copy for your local law enforcement agency, take one of your extra copies and deliver it to them.
• You may wish to consider changing your locks and your phone number.

It is important to realize that a protection order has limits. To make it as effective as possible, you must be vigilant in enforcing the order's provisions by reporting every violation to the police or the court.

Ongoing safety planning is important after receiving the order. Women can do a number of things to increase their safety during violent incidents, when preparing to leave an abusive relationship, and when they are at home, work, and school. Many batterers obey protective orders, but some do not and it is important to build on the things you have already been doing to keep yourself safe. Click on the following link for suggestions on Safety Planning. (You can access the safety planning information any time from the WomensLaw.org Home page.) Advocates at local resource centers can assist you in designing a safety plan and can provide other forms of support.

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What can I do if the abuser violates the order?

Call the police or sheriff, even if you think it is a minor violation.  An abuser can be arrested, fined and/or jailed.

It is a good idea to write down the name of the responding officer (s) and their badge number in case you want to follow up on your case. 

Make sure a police report is filled out, even if the police do not arrest your abuser.  If you have legal documentation of all violations of the order, it can help you change or extend the order.

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How do I change or extend the protection order?

Permanent protection orders can be renewed for one year periods.  If you want an extension, you have to return to court and ask for one before your first order expires.

• If your abuser objects to the extension, there will be another hearing where you will have to show the judge why you need the order extended.  The abuser can be at this hearing as well. 
• If your abuser does not object to the extension, then you will not have this hearing.

If for some reason you decide to get back together with the abuser, you must go back to court to have a judge modify your order.  For example, if your protection order bans the abuser from your home, and you want him to move back in, you must have the order amended so that the abuser can live with you.  Otherwise, he may be arrested. 7

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What happens if I move?

Your protection order is automatically good in all Idaho counties. If you move within the state, it is a good idea to let the law enforcement in your new area know about the order.

Additionally, the federal law provides what is called "Full Faith and Credit," which means that once you have a criminal or civil protection order, it follows you wherever you go, including U.S. Territories and tribal lands.  Different states have different rules for enforcing out-of-state protection orders.  You can find out about your state’s policies by contacting a domestic violence program, the clerk of courts, or the prosecutor in your area.

If you are moving out of state, you should call the battered women’s program in the state where you are going to find out how that state treats out-of-state orders. 

If you are moving to a new state, you may also call the National Center on Full Faith and Credit (1-800-903-0111) for information on enforcing your order there.

Note: Civil protective orders may not be enforceable on military bases, and military protective orders may not be enforceable off base. Please check with your local police department, court clerk, and/or domestic violence advocate for more details. Please see our Military Info page for more information.

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What if I don't qualify for a protection order?

In Idaho, protection orders do not cover:

• victims of abuse whose abusers are not
  • family members,
  • household members, or
  • current or former dating partners; or
• victims of stalking and harassment.

However, assault, stalking, and harassment are against the law. If one of these crimes is being committed against you, you should consider reporting it to law enforcement. If charges are pressed against the perpetrator, a judge may be able to order him to stay away from you.

Victims of stalking and harassment should also go to the Stalking Resource Center website for more information on stalking and harassment laws, as well as ways to keep safe.

Protection orders also do not cover many types of emotional or mental abuse. If you're being emotionally abused, please contact a domestic violence organization in your area. They can help you figure out your options and offer you support (ID Links & Resources).

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The information on this website is for informational purposes only and does not constitute legal advice.  

For more information about protection orders for the state of Idaho, check out http://www.womenslaw.org/ID/ID_how_to.htm for more information.   The information above was gathered from http://www.womenslaw.org/ID/ID_how_to.htm.