Domestic Violence

Maryland, through its statutes, has taken a strong stand against domestic violence. If you are a victim of domestic violence, you will be awarded a domestic violence protective order (DVPO). The potential relief available to you includes use of the family home, custody of the children, no contact from the abuser, and support. It is a complicated process that starts with the filing of a Petition for Protection from Domestic Violence.

It is important to be aware that domestic violence matters are public record. When a petition is filed against you, this information is available in the public domain. It is difficult to get these records erased or shielded from public view. If a finding of domestic violence is made by the court, then it becomes even more difficult. It is likely that it will remain public and visible for more than a year. After a year, only with the consent of the Respondent may the Court shield the record. These records can have catastrophic effects on employment, employability, and security clearances.

If you are the victim of domestic violence, or if you have been accused of domestic violence, it is important that you retain the services of an experienced attorney. Our office has been handling matters involving domestic violence for Over [sum_y] years. Feel free to call us for advice. 301 515 1190.

To get protection from domestic violence you must be a PERSONS ELIGIBLE FOR RELIEF.

Person eligible for relief” from domestic violence include:
(1)   the current or former spouse of the respondent;
(2)   a cohabitant of the respondent;
(3)   a person related to the respondent by blood, marriage, or adoption;
(4)   a parent, stepparent, child, or stepchild of the respondent or the person eligible for relief who resides or resided with the respondent or person eligible for relief for at least 90 days within 1 year before the filing of the petition;
(5)   a vulnerable adult;
(6)   an individual who has a child in common with the respondent; or
(7)   an individual who has had a sexual relationship with the respondent within 1 year before the filing the petition

IF THE ABUSED PERSON IS A CHILD:

If the person for whom relief is sought is a child, “abuse” may also include abuse of a child, as defined in Title 5, Subtitle 7 of this article. Nothing in this subtitle shall be construed to prohibit reasonable punishment, including reasonable corporal punishment, in light of the age and condition of the child, from being performed by a parent or stepparent of the child.

§5–701.  Provides:

(a)   Except as otherwise provided in § 5–705.1 of this subtitle, in this subtitle the following words have the meanings indicated.
(b)    (1)   “Abuse” means:
(i)   the physical or mental injury of a child under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed by:
1.   a parent;
2.   a household member or family member;
3.   a person who has permanent or temporary care or custody of the child;
4.   a person who has responsibility for supervision of the child; or
5.   a person who, because of the person’s position or occupation, exercises authority over the child; or
(ii)   sexual abuse of a child, whether physical injuries are sustained or not.
(2)   “Abuse” does not include the physical injury of a child by accidental means.

**
Corporal punishment, spanking your child, is permitted in Maryland – though I would not recommend testing that in out courts. Many of our judges, especially in Montgomery County, do not approve of any corporal punishment.

The domestic ABUSE alleged must be ABUSE that is recognized by the statute.

“Abuse” means any of the following acts:
(i)   an act that causes serious bodily harm;
(ii)   an act that places a person eligible for relief in fear of imminent serious bodily harm;
(iii)   assault in any degree;
(iv)   rape or sexual offense under §§ 3–303 through 3–308 of the Criminal Law Article or attempted rape or sexual offense in any degree;
(v)   false imprisonment; or
(vi)   stalking under § 3–802 of the Criminal Law Article.
(2)   If the person for whom relief is sought is a child, “abuse” may also include abuse of a child, as defined in Title 5, Subtitle 7 of this article. Nothing in this subtitle shall be construed to prohibit reasonable punishment, including reasonable corporal punishment, in light of the age and condition of the child, from being performed by a parent or stepparent of the child.
(3)   If the person for whom relief is sought is a vulnerable adult, “abuse” may also include abuse of a vulnerable adult, as defined in Title 14, Subtitle 1 of this article.

To be granted a DVPO you must PROVE that domestic abuse occurred to a PREPONDERANCE OF THE EVIDENCE.

A person eligible for relief from domestic violence must prove that they are a victim of domestic abuse. The burden of proof is low. The victim must prove that the abuse occurred to a “preponderance of the evidence”. This is the lowest burden recognized in law. It means that the alleged violence likely occurred.

PROTECTIVE ORDERS

I a “personal eligible for relief” proves “abuse” to the “preponderance of the evidence”, then that person may be awarded a domestic violence protective order (DVPO)

There are three types of DVPO that may be awarded by the court. It depends where you are in the process.

1) Interim Order
2) Temporary Order
3) Permanent Order

When a DVPO is issued, the Sheriff or other authorized agent, usually a police officer, serves a copy of the Petition and Order on the accused. It should be noted that the order is in effect as soon as it is issued. The order prohibits the accused from specified conduct, usually the accused is not allowed to go near the residence or contact the person who filed the petition.

Where as domestic violence matters are not criminal by statute, violation of the order is a criminal offense with serious consequences. An individual subject to a DVPO should not contact the accuser or go anywhere near where the accuser may be. Even if the accuser telephones, the person subject to a DVPO should not answer the phone.

INTERIM ORDER

If you go to a commissioner, a petition for protection from domestic violence when the courts are not opened, the commissioner may issue an “interim order” .”If a petition is filed with a commissioner and the commissioner finds that there are reasonable grounds to believe that the respondent has abused a person eligible for relief, the commissioner may issue an interim protective order to protect a person eligible for relief.

An interim protective order may:
(1)   order the respondent to refrain from further abuse or threats of abuse of a person eligible for relief;
(2)   order the respondent to refrain from contacting, attempting to contact, or harassing a person eligible for relief;
(3)   order the respondent to refrain from entering the residence of a person eligible for relief;
(4)   if a person eligible for relief and the respondent are residing together at the time of the alleged abuse:
(i)   order the respondent to vacate the home immediately;
(ii)   award to a person eligible for relief custody of any child of the person eligible for relief and respondent then residing in the home; and
(iii)   subject to the limits as to a nonspouse specified in § 4–505(a)(2)(iv) of this subtitle, award temporary use and possession of the home to the person eligible for relief;
(5)   in a case alleging abuse of a child, award temporary custody of a minor child of the respondent and a person eligible for relief;
(6)   in a case alleging abuse of a vulnerable adult, subject to the limits as to a nonspouse specified in § 4–505(a)(2)(iv) of this subtitle, award temporary use and possession of the home to an adult living in the home;
(7)   order the respondent to remain away from the place of employment, school, or temporary residence of a person eligible for relief;
(8)   order the respondent to remain away from the residence of any family member of a person eligible for relief; or
(9)   award temporary possession of any pet of the person eligible for relief or the respondent.

Interim Order – TEMPORARY CUSTODY OF A CHILD

If the commissioner awards temporary custody of a minor child under subsection (c)(4)(ii) or (5) of this section, the commissioner may order a law enforcement officer to use all reasonable and necessary force to return the minor child to the custodial parent after service of the interim protective order.

An interim protective order shall be effective until the earlier of:
(i)   the temporary protective order hearing under § 4–505 of this subtitle; or
(ii)   the end of the second business day the Office of the Clerk of the District Court is open following the issuance of an interim protective order.

TEMPORARY ORDER

The temporary protective order may order any or all of the following relief:
(i)   order the respondent to refrain from further abuse or threats of abuse of a person eligible for relief;
(ii)   order the respondent to refrain from contacting, attempting to contact, or harassing any person eligible for relief;
(iii)   order the respondent to refrain from entering the residence of a person eligible for relief;
(iv)   where the person eligible for relief and the respondent are residing together at the time of the alleged abuse, order the respondent to vacate the home immediately and award temporary use and possession of the home to the person eligible for relief or in the case of alleged abuse of a child or alleged abuse of a vulnerable adult, award temporary use and possession of the home to an adult living in the home, provided that the court may not grant an order to vacate and award temporary use and possession of the home to a nonspouse person eligible for relief unless the name of the person eligible for relief appears on the lease or deed to the home or the person eligible for relief has resided in the home with the respondent for a period of at least 90 days within 1 year before the filing of the petition;
(v)   order the respondent to remain away from the place of employment, school, or temporary residence of a person eligible for relief or home of other family members;
(vi)   order the respondent to remain away from a child care provider of a person eligible for relief while a child of the person is in the care of the child care provider;
(vii)   award temporary custody of a minor child of the person eligible for relief and the respondent;
(viii)   order the respondent to surrender to law enforcement authorities any firearm in the respondent’s possession, and to refrain from possession of any firearm, for the duration of the temporary protective order if the abuse consisted of:
1.   the use of a firearm by the respondent against a person eligible for relief;
2.   a threat by the respondent to use a firearm against a person eligible for relief;
3.   serious bodily harm to a person eligible for relief caused by the respondent; or
4.   a threat by the respondent to cause serious bodily harm to a person eligible for relief; and
(ix)   award temporary possession of any pet of the person eligible for relief or the respondent.

If the judge awards temporary custody of a minor child under paragraph (2)(vii) of this subsection, the judge may order a law enforcement officer to use all reasonable and necessary force to return the minor child to the custodial parent after service of the temporary protective order.

There shall be no cost to the petitioner for service of the temporary protective order.

Except as otherwise provided in this subsection, the temporary protective order shall be effective for not more than 7 days after service of the order. The judge may extend the temporary protective order as needed, but not to exceed 6 months, to effectuate service of the order where necessary to provide protection or for other good cause.

The judge may proceed with a final protective order hearing instead of a temporary protective order hearing, if:
(1)    (i)   the respondent appears at the hearing;
(ii)   the respondent has been served with an interim protective order; or
(iii)   the court otherwise has personal jurisdiction over the respondent; and

Whenever a judge finds reasonable grounds to believe that abuse of a child, as defined in Title 5, Subtitle 7 of this article, or abuse of a vulnerable adult, as defined in Title 14, Subtitle 1 of this article, has occurred, the court shall forward to the local department a copy of the petition and temporary protective order.
Whenever a local department receives a petition and temporary protective order from a court, the local department shall:
(i)   investigate the alleged abuse as provided in:
1.   Title 5, Subtitle 7 of this article; or
2.   Title 14, Subtitle 3 of this article; and
(ii)   by the date of the final protective order hearing, send to the court a copy of the report of the investigation.

The temporary protective order states the time and date for the permanent protective order hearing.

FINAL PROTECTIVE ORDER

A final protective order is issued only in response to a hearing. The accused (Respondent) must be served with notice before the hearing. Notice is a copy of the petition and the temporary or interim order. The notice contains the date and time of the final hearing. Once the Respondent has notice, he has the choice whether to appear at the hearing. If the Respondent does not attend the hearing, a protective order can be issued based on the evidence presented by the Petitioner if the Court makes a FINDING that it is likely that the abuse occurred.

If the Respondent appears at the hearing, the respondent can consent to the entry of the order. This means that the Respondent agrees to not contact and to stay away from the Petitioner. When the Respondent consents to the entry of a domestic violence order, the Court does not make a finding about whether the Respondent committed domestic abuse.

If the Respondent does not consent to the entry of a domestic violence protective order, then the matter will proceed to a hearing. If the court finds by a preponderance of the evidence that domestic abuse occurred, the court will make a FINDING that the abuse occurred. A final protective order may be issued ONLY to the Petitioner. Therefore, if the Respindent is also a victim of abuse, the Court can not issue an order to the Respondent unless the Respondent also filed a Petition for Protection from Domestic Violence.

If both parties filed Petitions for Protection from Domestic Violence the court may issue both parties a DVPO is the court specifically finds:
1.   both parties acted primarily as aggressors; and
2.   neither party acted primarily in self–defense.

The final protective order may include any or all of the following relief:

(1)   order the respondent to refrain from abusing or threatening to abuse any person eligible for relief;
(2)   order the respondent to refrain from contacting, attempting to contact, or harassing any person eligible for relief;
(3)   order the respondent to refrain from entering the residence of any person eligible for relief;
(4)   where the person eligible for relief and the respondent are residing together at the time of the abuse, order the respondent to vacate the home immediately and award temporary use and possession of the home to the person eligible for relief or, in the case of alleged abuse of a child or alleged abuse of a vulnerable adult, award temporary use and possession of the home to an adult living in the home, provided that the court may not grant an order to vacate and award temporary use and possession of the home to a non-spouse person eligible for relief unless the name of the person eligible for relief appears on the lease or deed to the home or the person eligible for relief has shared the home with the respondent for a period of at least 90 days within 1 year before the filing of the petition;
(5)   order the respondent to remain away from the place of employment, school, or temporary residence of a person eligible for relief or home of other family members;
(6)   order the respondent to remain away from a child care provider of a person eligible for relief while a child of the person is in the care of the child care provider;
(7)   award temporary custody of a minor child of the respondent and a person eligible for relief;
(8)   establish temporary visitation with a minor child of the respondent and a person eligible for relief on a basis which gives primary consideration to the welfare of the minor child and the safety of any other person eligible for relief. If the court finds that the safety of a person eligible for relief will be jeopardized by unsupervised or unrestricted visitation, the court shall condition or restrict visitation as to time, place, duration, or supervision, or deny visitation entirely, as needed to guard the safety of any person eligible for relief;
(9)   award emergency family maintenance as necessary to support any person eligible for relief to whom the respondent has a duty of support under this article, including an immediate and continuing withholding order on all earnings of the respondent in the amount of the ordered emergency family maintenance in accordance with the procedures specified in Title 10, Subtitle 1, Part III of this article;
(10)   award temporary use and possession of a vehicle jointly owned by the respondent and a person eligible for relief to the person eligible for relief if necessary for the employment of the person eligible for relief or for the care of a minor child of the respondent or a person eligible for relief
(11)   except when a protective order is issued for a person eligible for relief described in § 4–501(m)(7) of this subtitle, direct the respondent or any or all of the persons eligible for relief to participate in professionally supervised counseling or a domestic violence program;
(12)   order the respondent to pay filing fees and costs of a proceeding under this subtitle;
(13)   award temporary possession of any pet of the person eligible for relief or the respondent; or
(14)   order any other relief that the judge determines is necessary to protect a person eligible for relief from abuse.

If you are the victim of domestic violence, or if you have been accused of domestic violence, it is important that you retain the services of an experienced attorney. Our office has been handling matters involving domestic violence for Over [sum_y] years. Feel free to call us for advice. 301 515 1190.