Thumbnail on Domestic Violence

Tips Everyone Should Know
Cathleen M. Vitale, Esquire
Telephone: 410.768.9300
E-mail: cmvitale@henault-sysko.com

Domestic violence law in the State of Maryland has undergone significant changes in the last few years. The individuals eligible for relief has been expanded as has the time frame for the length of a Protective Order should one be asked for and granted. The following are a few pointers regarding the request for and issuance of Domestic Violence Protective Orders.

1. Venue - unlike most other proceedings in Maryland, the law is silent as to which County would be an appropriate venue for the filing of a Domestic Violence Petition. It is presumed that the matter would be filed int he County where the Petitioner resides, however it is not required. VENUE SHOPPING CAN BE AN EFFECTIVE WAY TO INSURE THAT YOUR PETITION IS GRANTED. Keep in mind that witnesses such as police officers, employers and family members are most easily secured if the case is filed in the County were the parties reside.

2. Where do you file for Domestic Violence Protection? - Both the Circuit Court and the District Court are appropriate Courts for the filing of Domestic Violence petitions. The District Court is usually the preferred forum due to the familiarity of the Petitions and the sheer number of petitions filed each week.

3. What happens at the protective order hearing? - The second part of a Protective Order request (the seven day hearing) is held approximately seven days after the Petition for Ex parte protection was presented to the Court. With the exception of Mondays, this means that the Domestic Violence petitions and hearings are added to the end of a regular District Court docket and heard at the end of the morning or afternoon session. Because of the time constraints of the Court, this means that you are left with little time within which to present your case to the trial court.

4. DO NOT MAKE THE REQUEST FOR PROTECTION FROM DOMESTIC VIOLENCE INTO A CASE FOR CHILD CUSTODY OR SUPPORT. If the Trial court believes that you are filing a Domestic Violence petition to "get a leg up" in a divorce or custody proceeding, not only are you going to have your petition denied but you risk adverse rulings that might ultimately effect the outcome of a custody or support case. Visitation is usually not denied at a Protective Order proceedings unless there has been grave injury to the children or likelihood of continued abuse toward the children.

5. Length of Order - the Court can now enter Protective Orders for a period of up to one year. The order can include emergency family maintenance, non contact orders, visitation structures, use and possession of the family home and vehicles and a number of other specific relief. The Court usually considers the following items in determining the length of the Protective Order:

1. Is there a proceeding filed or going to be filed in the Circuit Court? If yes, the protective order is likely to be long enough to get a hearing in the Circuit Court of for the parties to retain counsel and file divorce proceedings.

1. Do these parties merely need a cooling off period in order to see counselors or attorneys and negotiate a settlement?

2. Are there children involved? If yes, are they truly in need of a protective order or are they just listed by the Petitioner.

3. Have there been prior acts of domestic violence? If the marriage is of a significant duration, is this the first incident?

4. Was there physical injury or just pushing and shoving?

5. What was the parties' demeanor and attitude toward each other and the Court during the hearing?

1. The Court can award Emergency Family maintenance for the duration of the Protective Order The purpose is to provide to the individual who will retain the children, the house and be responsible for debts, the financial means for keeping things at "status quo". There is no special formula for determining the amount of money to be awarded. FAMILY MAINTENANCE IS NOT BROKEN DOWN BETWEEN CHILD SUPPORT OR ALIMONY, IT IS ALL CONSIDERED ALIMONY, DEDUCTIBLE TO THE PERSON PAYING AND CHARGEABLE TO THE PERSON RECEIVING.

1. Emergency family maintenance is not punitive. The Court has no authority to make an award based on fault.

2. The purpose is to cause as little disruption in the lives of the parties until the matters can be heard more fully in a different Court (Circuit Court - divorce)

1. Use and possession usually means custody - If the Court awards a Protective Order which is to include the children, he Court is likely to award, if asked, use and possession of the family home. However, since this is not a custody proceeding, at the expiration of the Protective Order, use and possession expires as does any right of custody for one person or another.

2. If there are not cross petitions filed, the Court cannot grant Protective Orders, even by consent requiring mutual "no contact" provisions. In reality, the District Court does it all the time as a method of clearing their dockets. However, they cannot be enforced against the person who was not the subject of the initial Protective Order request.

3. TIPS TIPS TIPS TIPS -

1. Keep your presentation short.

2. Stick to the facts that brought you to file for Protection. The fact that there was abuse two years ago only matters if used to show history or pattern.

3. Keep calm. Protective orders are granted or denied based on the parties attitudes while before the Court.

4. Be careful about asking for a protective order. If it backfires it could have long lasting financial and custodial affects.