Domestic Relations Resource Guide - Section II: Domestic Violence

Domestic violence within the context of domestic relations cases is governed by R.C. Chapter 3113. R.C. 3113.31(A)(1) defines domestic violence as any of the following acts against a family or household member:

• Attempting to cause or recklessly causing bodily injury

• Placing another by the threat of force in fear of imminent serious physical harm or committing the following acts:

  • Menacing by stalking [R.C. 2903.211]

    • Pattern of conduct of two or more actions or incidents closely related in time

    • Knowingly caused or would cause the petitioner physical harm or mental distress

  • Aggravated trespass [R.C. 2911.211]

• Abusing a child [R.C. 2151.031]

• Committing a sexually oriented offense [R.C. 2950.01]

Domestic violence also includes instances where the respondent has created a substantial risk to the health and safety of the child by violating a duty of care owed to the child. [R.C. 3113.31(A)(1)(a)(iii); R.C. 2151.031(B); R.C. 2919.22(A)]

Unless the child suffers physical or mental injury that harms or threatens to harm the child’s health or welfare, a child exhibiting evidence of corporal punishment or other physical disciplinary measures by a parent, guardian, custodian, person having custody or control or person in loco parentis of a child is not an abused child under this division. [Glancy v. Spradley, 2012-Ohio-4224; even though “switching” a child left welts on the child’s legs, there was no evidence of substantial physical harm to the child’s mental health or physical development.]

1. Jurisdiction and Venue [R.C. 3113.31(A)(2); Civ.R. 3(C)]
   When parties to the case are family or household members or a person in a dating relationship with respondent, domestic relations courts have jurisdiction.

   Proper venue lies in the counties with connection to the parties or allegation:

   • Where Petitioner resides temporarily or permanently

   • Where Respondent resides

   • Where incident(s) occurred

   Domestic Violence Civil Protection Order Forms [Sup.R. 10.01]
   Courts must use the forms promulgated by the Supreme Court of Ohio, which are available on the Supreme Court's website, or substantially similar forms. The clerk of courts must make forms available.

2. Who May Seek Relief [R.C. 3113.31(C)]
   Any parent or adult household member may seek relief on their own behalf or on behalf of another family or household member. Therefore, a person may file on behalf of another family/household member (i.e., child) IF the petitioner is a family/household member of the on-behalf-of party and the on-behalf-of party is a family/household member of the respondent.

   A person who is or was in a dating relationship with respondent may also seek relief. A petitioner's right to relief is not affected by the petitioner's leaving the residence or household to avoid further domestic violence. [R.C. 3113.31(B)]

   1. Family or Household Member Relationship [R.C. 3113.31(A)(3)]
      A family or household member relationship is necessary to seek relief through a Domestic Violence Civil Protection Order. A person who is or has resided at some point in the past with the respondent constitutes a household member.

      • Spouse, former spouse, person living as a spouse.

        • Person living as a spouse may include:

          • Cohabiting with or cohabited within 5 years prior to the incident

          • By common law marriage if existed before October 10, 1991

          • Including same sex relationship

          • Sharing of familial or financial responsibilities and consortium

          • See State v. McClothan, 2014-Ohio-85 (2014), State v. Carswell, 114 Ohio St.3d 2010 (2007), State v. Williams, 79 Ohio St.3d 459 (1997).

      • A parent, foster parent, or a child of the respondent, or another person related by consanguinity or affinity to respondent.

      • A parent or a child of a spouse, person living as a spouse, or former spouse of respondent, or another person related by consanguinity or affinity.

      • A person who never resided with the respondent.

        • The natural parent of any child of whom the respondent is the other natural parent or is the putative other natural parent. ("Putative other natural parent" does not require a parentage determination.)

      • A person who is or was in a dating relationship with the respondent.

        • A relationship between individuals who have or have had a relationship of a romantic or intimate nature at the time of the conduct in question.

        • Was in a dating relationship with the respondent within the 12-month preceding the conduct in question.

        • Does not include casual acquaintanceship or ordinary fraternization in a business or social context.

3. Special Statutory Proceeding [Civ.R. 65.1(A)]
   Civ.R. 65.1 applies to special statutory proceedings under R.C. 3113.31, R.C. 2151.34, and R.C. 2903.214. Any provision of the Rules of Civil Procedure that is inconsistent with those special statutory provisions is superseded and inapplicable to the extend of the inconsistency. The petitioner may be accompanied by a victim advocate. [R.C. 3113.31(M)]

   PRACTICE TIP:

   Because civil protection order proceedings are designated as special statutory proceedings certain aspects of the Rules of Civil Procedure are inapplicable in domestic violence and dating violence civil protection order cases. For example, a civil protection order is neither a magistrate’s order nor a magistrate’s decision.

   1. Petition for a Domestic Violence Civil Protection Order (CPO) [C. 3113.31(C)]
      The Petition for Domestic Violence Civil Protection Order shall contain:

      • An allegation that the respondent engaged in domestic violence against a family or household member or a person with whom the respondent was in a dating relationship.

      • A description of the nature or extent of the violence.

      • The relationship of the respondent to the petitioner, and to the victim if not the petitioner.

      • If the petitioner is in a dating relationship with the respondent, facts upon which the court may conclude the dating relationship existed.

      • Request for relief.

   2. Relief Available [R.C. 3113.31(E)]
      The court has the authority to:

      • Direct the respondent to refrain from abusing or committing sexually oriented offenses against the family or household member, or person with whom respondent is in a dating relationship.

      • Evict the respondent and grant exclusive use of the residence to protected parties where the residence is solely owned/leased by petitioner or other family or household member.

      • Order the respondent to vacate the residence and grant exclusive use of the residence to the protected parties where the residence is jointly owned/leased by respondent and the petitioner or other family/household member. If the respondent solely owns/leases the residence, the respondent has a duty to support petitioner or other family/household member living in the residence/household.

      • Temporarily allocate parental rights and responsibilities if no other court is exercising jurisdiction [Hyde v. Smith, 2015-Ohio-1701; Hoyt v. Heindell, 2010-Ohio-6058] R.C. 3113.31(E)(1) has been limited to allow a domestic relations court “to make emergency decisions, on an interim basis, to protect children from imminently dangerous situations.”

      • Require the respondent to maintain support if the respondent has a duty to support petitioner or family or household member.

      • Order the respondent to refrain from entering the residence, school, business, or place of employment of the petitioner or a family or household member.

      • Order the respondent not to cause another person to violate the order.

      • Require the respondent, petitioner, victim of domestic violence or any combination of those persons to seek counseling.

      • Order the respondent not to remove, damage, hide, harm, or dispose of any companion animal owned or possessed by petitioner.

      • Authorize the petitioner to remove a companion animal owned by petitioner from the possession of respondent.

      • Require a wireless service transfer. [R.C. 3113.45-3113.459]

        • The court may order wireless service providers to transfer the protected party's phone service from respondent's account to the protected party.

        • This transfers the rights to and billing responsibility for the account to the protected party.

        • Form 10-E: Wireless Service Transfer Order in Domestic Violence Civil Protection Order shall be served on the wireless service provider's or reseller's agent for service of process as listed with the Secretary of State.

      • Any other relief.

      If the petitioner requests ex parte relief:

      • An ex parte hearing is held the same day the petition is filed.

      • A magistrate may conduct the hearing and grant or deny the order without judicial approval. [Civ.R. 65.1(F)(2)] A magistrate granting or denying the order is not subject to Civ.R. 52(D)(2) or (3).

      • Necessary finding: Immediate and present danger of domestic violence to a family or household member or the person with whom the respondent is or was in a dating relationship. [R.C. 3113.31(D)(1); Felton v. Felton, 79 Ohio St.3d 34 (1997)]

      • Burden of proof: Preponderance of evidence.

      • The order is effective upon the magistrate's signature and filing with the clerk of court. An order signed by a magistrate has the same effect as if signed by the judge.

      • The order is not subject to Civ.R. 53(D)(4).

      • The order is valid until a date certain.

      • The ex parte order is not a final appealable order.

      • The ex parte order does not terminate due to lack of service or if a continuance of full hearing is granted.

   3. Service [Civ.R. 65.1(C)]

      • The clerk of courts shall cause service to be made on the respondent of a copy of the petition and all other documents required by the applicable protection order statute.

      • Initial service and service of any ex parte protection order shall be made in accordance with the provision for personal service of process within the state under Civ.R. 4.1(B) or outside the state pursuant to Civ.R. 4.3(B)(2).

      • Upon failure of initial service or in addition to personal service, service may be made in accordance with any applicable provision of Civ.R. 4-4.6.

      • Service by posting where the residence of the respondent is unknown [Civ.R. 4.4(A)(2)(b)]

        • May be made without the necessity of a poverty affidavit.

        • Requires an affidavit averring that the residence is unknown, all the efforts made to ascertain the residence address, the last known address, that residence cannot be ascertained with reasonable diligence.

        • Posting in the courthouse and two other public places as set forth in local rule. Posting shall not be on the website for the clerk of courts.

        • Notice shall be posted for six consecutive weeks.

      • After initial service is completed on a respondent, any additional service on the respondent during the course of the proceedings shall be made in accordance with Civ.R. 5(B).

   4. Full Hearing [R.C. 3113.31(D)]
      The hearing must be scheduled:

      • Within seven court days after the ex parte hearing is held and an ex parte order granted if the respondent is ordered to vacate or is evicted from residence.

      • Within 10 court days after the ex parte hearing is held if an ex parte order is granted and does not include an order for the respondent to vacate or be evicted from residence.

      • Scheduled as a normal civil action if an ex parte order is denied.

      • The court must give the respondent notice of, and an opportunity to be heard at, the full hearing.

      Grounds for Continuance of Full Hearing [R.C. 3113.31(D)(2)(a)]

      • Prior to the scheduled full hearing date, the respondent has not been served with the petition or notice of hearing.

      • The parties consent to a continuance.

      • The continuance is needed to allow either party to obtain counsel.

      • The continuance is needed for other good cause shown.

      Discovery [Civ.R. 65.1(D)]

      • Completed prior to the time set for the full hearing

      • Discovery may be had upon the entry of an order containing all the following to extent applicable:

        • Time and place of discovery;

        • The identities of the persons permitted to be present, shall include victim advocate; and

        • Terms and conditions deemed by court necessary to assure the safety of the petitioner, including address confidentiality.

      Required Finding – Continued Danger of Domestic Violence

      • The Supreme Court of Ohio held that "the trial court must find...that petitioner or petitioner's family or household members are in danger of domestic violence." [Felton v. Felton, 79 Ohio St.3d 34 (1997)]

      • Burden of Proof: Preponderance of evidence.

      • A magistrate may conduct a hearing and grant or deny the protection order. [Civ.R. 65.1(F)(3)(a)] Magistrate denial or granting of the order is not subject to Civ.R. 53(D)(2) or (3).

      • Upon review, the court may adopt, or reject, the magistrate's denial or granting of the order. [Civ.R. 65.1(F)(3)(c)]

        • Determine there is no error of law or defect on the face of the order

        • Modify or reject the magistrate's order; not subject to Civ.R. 53(D)(4)(e)

        • Effective when signed by the judge and filed with the clerk of court

      Granting the Protection Order

      • The order is valid for a date certain but not more than five years from the date of issuance or approval.

      • A full hearing domestic violence CPO and consent agreement are final appealable orders. [R.C. 3113.31(G)]

      • If issued by a magistrate, objections must be filed prior to filing an appeal.

      • The filing of objections stays the running time for filing the appeal until the court rules on the objections.

   5. Objections to Domestic Violence CPO [Civ.R. 65.1(F)(3)(d)]

      • Timely filed objections to the adoption, modifications, or rejection of the magistrate’s granting or denial of the order do not stay the execution of the order.

        • Written objections must be filed within 14 days of the filing of the order.

        • The other party may also file objections not later than 10 days after the first objections are filed.

      • The party filing objections has the burden to show:

        • An error of law or other defect is evidence on the face of the order.

        • Credible evidence is insufficient to support granting or denying the protection order.

        • An abuse of discretion in including or failing to include specific terms in the protection order.

      • Evidentiary objections shall be supported by a transcript of all the evidence submitted or an affidavit of that evidence if a transcript is not available.

        • The transcript or affidavit must be filed with the court within 30 days after filing objections, unless extended by the court in writing.

   6. Additional Terms

      • Title to real property is not affected by a domestic violence CPO or consent agreement.

      • Neither petitioner nor petitioner's family or household members’ actions waive or nullify any of the terms of the domestic violence CPO or consent agreement.

      • Provisions in a domestic violence CPO or consent agreement that allocate parental rights or award child support will be terminated either on a date certain set forth in the order or on the date that a court of competent jurisdiction makes a new award allocating parental rights, parenting time or child support.

        • Provisions in the domestic violence CPO or consent agreement not modified remain in full force and effect.

        • A child named in a parenting time order may still be a protected party in a domestic violence CPO or consent agreement. [R.C. 3113.31(O); State v. Price, 118 Ohio St.3d 144 (2008)]

        • Minor children may be included as protected parties in a protection order without temporarily allocating parental rights and responsibilities or making a determination of companionship rights.

      PRACTICE TIP:

      If the respondent is permitted to exercise parenting time with minor children, the domestic violence CPO should be specific regarding how that contact is to occur. Any contact outside the parameters of the CPO by the respondent may be construed as a violation of the domestic violence CPO. Best practice may be to have the petitioner and respondent communicate in writing to minimize potential abuse.

      If the court is going to order the protected parties into counseling, intervention, or treatment, the programs should be trauma informed.

   7. Modification, Renewal, or Termination of a Protection Order

      • A DV CPO may be renewed in the same manner as the original order was issued or approved. [R.C. 3113.31(E)(3)]

      • Either the petitioner or respondent may file a motion to modify or terminate a DV CPO or consent agreement. [R.C. 3113.31(E)(8)(b)]

      • The court that issued the DV CPO or approved the consent agreement retains jurisdiction to modify or terminate. [R.C. 3113.31(E)(8)(a)]

      • A motion to modify the termination date of a CPO cannot extend beyond five years from date of original CPO. [S.H.B. v. M.W.L., 2021-Ohio-3929]

      • Burden of Proof: Preponderance of evidence.

      • Motions referred to a magistrate must be handled in the same manner as any other full hearing of civil protection orders. [Civ.R. 65.1(F)(3)(e)]

      • There is no expedited hearing requirement.

      • Petitioner's address must remain confidential if requested in the original DV CPO petition.

      • The court's adoption of a magistrate's ruling granting or denying a modification, finding of contempt, renewal, or a termination of an existing order is a final appealable order once signed by judge and filed with the clerk of court. [R.C. 3113.31(G)(1); Civ.R. 65.1(G)]

      Factors for Modification or Termination of DV CPO or Consent Agreement

      • Petitioner consents to modification or termination.

      • Petitioner's fear of respondent.

      • Current nature of relationship between petitioner and respondent.

      • Circumstances of petitioner and respondent (e.g., proximity of workplaces and residences; whether petitioner and respondent have minor children together).

      • Whether respondent complied with terms and conditions of DV CPO or consent agreement.

      • Whether respondent has continuing involvement with illegal drugs or alcohol.

      • Whether respondent has been convicted of, pleaded guilty to, or been adjudicated a delinquent child for an offense of violence since the issuance of the DV CPO or consent agreement.

      • Whether any other protection orders, consent agreements, restraining orders, or no contact orders have been issued against respondent.

      • Whether respondent has participated in any domestic violence treatment, intervention program, or other counseling addressing domestic violence.

      • Whether respondent completed the treatment, program, or counseling.

      • Elapse of time since DV CPO or consent agreement.

      • Age and health of respondent.

      • When the last incident of abuse, threat of harm, or commission of sexually oriented offense occurred.

      • Other relevant information concerning the safety and protection of the petitioner or other protected parties.

      PRACTICE TIP:

      Motions to modify, enforce, renew, or terminate a civil protection order issued after a full hearing or a consent agreement shall be made in the manner provided for service under Civ.R. 4-4.6.

      After service has been made any additional service required shall be made in accordance with provision of Civ.R. 5(B).

   8. Enforcement and Penalties
      Protection Order Enforcement [R.C. 3113.31(F)(3)]

      • All law enforcement agencies are required to establish and maintain an index for the protection order and the approved consent agreements delivered to the agencies. The index shall note the date and time the DV CPO or consent agreement was received.

      • Full faith and credit requires law enforcement to enforce a qualifying DV CPO issued or approved by any state court regardless of whether the petitioner registered the order.

      • The qualifying protection order is issued by a court that has jurisdiction over the subject matter and parties, and respondent had reasonable notice and opportunity to be heard. [18 U.S.C. 2265(b)]

      • A DV CPO supersedes a DV TPO issued as a pretrial condition of release, if the DV CPO arises out of the same activity as the DV TPO. [R.C. 2919.26]

      • A DV CPO may not supersede a no-contact order if the no-contact order is issued as part of probation.

      • Courts should engage in reasonable efforts to ascertain the existence and terms of other protection or parenting orders involving the same parties. [Sup.R. 10.06]

      Violation of DV CPO or Consent Agreement

      • Criminal prosecution: If convicted, a party cannot be subsequently punished for contempt of court arising out of the same activity. [R.C. 2919.27; R.C. 3113.31(L)(1)(a)]

      • Contempt of Court R.C. 3113.31(L)(2)

        • Does not bar criminal prosecution of the person.

        • A person punished for contempt of court is entitled to credit for the punishment imposed upon conviction or adjudication as a delinquent child for violating a DV CPO.

        • Court has discretion to determine that a respondent did not commit a violation of the DV CPO or consent agreement or was not in contempt of court. [R.C. 3113.31(E)(7)(b)]

        • Failure to pay child support [R.C. 3113.31(K)(2)]

          • A respondent, ordered to pay child support in DV CPO or consent agreement, found in contempt for failing to pay child support, imposed a penalty or remedy for the contempt.

          • Respondent must be assessed all court costs and pay reasonable attorney fees of adverse party.

   9. Mandatory Firearm Warning [R.C. 3113.31(F)(2)]

      • The court must provide the firearm disability notice, orally or by form, upon the issuance of a full hearing DV CPO or consent agreement.

      • Requisite statutory firearms warning language is found in Form 10.04-A: Notice Concerning Possession or Purchase of Firearms and Form 10-C: Warning Concerning the Attached Protection Order or Consent Agreement.

      • Firearms disability provisions are found in 18 U.S.C. 922(g)(8).

      National Law Enforcement Database
      Courts must complete and file Form 10-A: Protection Order Notice to NCIC with the local law enforcement agency for entry of the protection order into the National Crime Information Center (NCIC) protection order database.

      • Any time a change is made to a protections order, a new Form 10.04-A: Notice Concerning Possession or Purchase of Firearms is needed, including:

        • Modification of terms or termination date

        • Ex parte ordered

        • When service is completed

        • After full hearing

      Additional Resources

      • BCI & NICS Reporting Requirements

   10. Limitations on Mutual Orders [R.C. 3113.31(E)(4)]
       The court may not issue a protection order that requires the petitioner to do or refrain from doing something that the court requires respondent to do or refrain from doing unless:

       • The respondent filed a separate petition for a protection order.

       • The petitioner is served with notice of respondent's petition at least 48 hours before the court holds hearing with respect to the respondent's petition or petitioner waives right to notice.

       • If the petitioner requested an ex parte order, petitioner's hearing is not delayed beyond the statutory time to consolidate the hearing on the petition respondent filed.

       After a full hearing on respondent's petition where both respondent and petitioner were given the right to present evidence the court may determine:

       • That petitioner committed an act of domestic violence.

       • That petitioner has violated a temporary protection order pursuant to R.C. 2919.26.

       • That both petitioner and respondent acted primarily as aggressors.

       • That neither petitioner nor respondent acted in self-defense.

   11. Costs
       No costs or fees shall be assessed against petitioners in connection with the filing of a petition or in connection with the filing, issuance, registration, modification, enforcement, dismissal, withdrawal, or service of a DV CPO, or for obtaining a certified copy of the order. [R.C. 3113.31(J)(1)]

       Costs may be issued against respondent in connection with the filing, issuance, registration, modification, enforcement, dismissal, withdrawal, or service of a protection order, consent agreement, or witness subpoena or to obtain a certified copy of the DV CPO or consent agreement.

       The court may assess costs if the respondent moves to modify or terminate an existing DV CPO if the motion is denied. [R.C. 3113.31(E)(8)(e)]

   12. Sealing the Record [R.C. 3113.31(G)(2)]
       If the court refuses to grant a protection order after the full hearing, the court shall order that the ex parte order issued and all of the records pertaining to that ex parte order be sealed after either of the following: no party has exercised the right to appeal or all appellate rights have been exhausted.

   13. Limits to Online Access of Protection Orders [18 U.S.C. 2265(d)(3)]
       A court shall not make available through remote access pursuant to Sup.R. 44-47, a Form 10.04-A: Notice Concerning Possession or Purchase of Firearms or any record of a civil protection order case that is likely to reveal the identity or location of a petitioner or another party to be protected or could be protected by a protection order. [Sup.R. 10(C), [Sup.R. 10.01(F)] Courts may share court-generated and law enforcement-generated information contained in secure, governmental registries for protection order enforcement purposes. [18 U.S.C. 2265(d)(3)]