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Rule 38. Contested Hearing Procedures

Arizona Revised Statutes AnnotatedArizona Rules of Protective Order ProcedureEffective: January 1, 2022

Arizona Revised Statutes Annotated
Arizona Rules of Protective Order Procedure
Part VIII. Contested Protective Order Hearings
Effective: January 1, 2022
17B A.R.S. Rules Protect.Ord. Proc., Rule 38
Formerly cited as AZ ST RPOP Rule 8
Rule 38. Contested Hearing Procedures
(a) Requesting a Hearing. At any time while a protective order or a modified protective order is in effect, a defendant may request one hearing in writing. See A.R.S. §§ 13-3602(L), 12-1809(H), 12-1810(G).
(b) Scheduling the Hearing. A judicial officer must hold the hearing at the earliest possible time.
(1) If an Order of Protection grants exclusive use of the residence, a judicial officer must hold a hearing within 5 court business days of the request. If exclusive use of a residence is awarded to the plaintiff, the court, on written request of a party, may hold additional hearings at any time if there is a change in circumstances related to the primary residence. See A.R.S. § 13-3602(L).
(2) For all other protective orders, a judicial officer must hold a hearing within 10 court business days of the request unless the judicial officer finds good cause to continue the hearing for a longer period of time.
(c) Notice of Hearing. The court must notify the plaintiff of the hearing. There is no statutory requirement for personal service of the hearing notice.
(d) Amended Petition. At a contested hearing, if a plaintiff seeks to testify or present evidence about relevant allegations that were not included in the petition, the court must:
(1) allow the plaintiff to amend the petition in writing on a form provided by the court, a copy of which the court must immediately provide to the defendant; and
(2) offer the defendant each of the following options:
(A) a continuance of the hearing, within the timeframes specified by Rule 38(b), to allow the defendant the opportunity to prepare for the additional allegations; or
(B) a brief recess to allow the defendant the opportunity to review the amended petition and prepare for the additional allegations; or
(C) an explanation of the options above and an opportunity to waive them. If the defendant waives both the opportunity for a continuance or a brief recess, then the court must proceed with the contested hearing on the amended petition that includes the additional allegations.
(e) Court Security Measures. The court must take reasonable measures to ensure that the parties and any witnesses at the hearing are not subject to harassment or intimidation in the courthouse or on adjoining property. For each hearing, the judicial officer must determine whether there is a need to have a law enforcement officer or a security officer present to help ensure the hearing is orderly or to provide escort for either party. The court may direct the defendant to remain in the courtroom for a period of time after the plaintiff is excused.
(f) Appearance at the Contested Hearing.
(1) Defendant Fails to Appear. If the plaintiff appears for the contested hearing and the defendant fails to appear, and the defendant received actual notice of the hearing, the protective order will remain in effect.
(2) Plaintiff Fails to Appear. If the defendant appears for the contested hearing and the plaintiff fails to appear, and the plaintiff received actual notice of the hearing, the protective order will be dismissed.
(3) Neither Party Appears. If neither party appears for the contested hearing, and each party received actual notice, the hearing will be vacated, and the protective order will remain in effect.
(g) Procedure. If both parties appear and a contested hearing is conducted, the following rules apply:
(1) Parties’ Right to be Heard. The judicial officer must ensure that both parties have an opportunity to be heard, to present evidence, and to call and examine and cross-examine witnesses.
(2) Oath or Affirmation. The court must administer an oath or affirmation to all parties and witnesses at all hearings.
(3) Standard of Proof. For a protective order to remain in effect as originally issued or as modified at a hearing, the plaintiff must prove the case by a preponderance of the evidence.
(4) Basis for Continuing, Modifying, or Revoking Protective Orders. At the conclusion of the hearing, the judicial officer must state the basis for continuing, modifying, or revoking the protective order.
(5) Service of Modified Protective Order. A modified protective order must be served on the defendant. Procedures for serving a defendant who is present in the courtroom are set forth in Rule 31(f)-(g).

Credits

Formerly Rule 8, added Sept. 5, 2007, effective Jan. 1, 2008. Renumbered Rule 38 and amended Aug. 27, 2015, effective Jan. 1, 2016. Amended on an emergency basis, effective Aug. 25, 2020, amendment adopted on a permanent basis, effective Jan. 1, 2021. Amended Aug. 26, 2020, effective Jan. 1, 2021; Aug. 30, 2021, effective Jan. 1, 2022.
17B A. R. S. Rules Protective Order Proc., Rule 38, AZ ST RPOP Rule 38
State Court Rules are current with amendments received through November 15, 2023. The Code of Judicial Administration is current with amendments received through November 1, 2023.
End of Document