Bolts: Seeking Protection from Abuse in Maryland 24/7.
In order to obtain the civil relief afforded under Maryland law, a person seeking protection from abuse must complete the correct petition, file the petition with a court clerk or commissioner in his or her jurisdiction, appear for a temporary hearing, and appear for a final hearing. The first step in obtaining protection is to determine the type of order that is available to the individual seeking protection. A person eligible for relief under the Domestic Violence Statute of Maryland's Family Law Article, §4-501 et. seq., is expressly precluded from filing for a peace order (Courts and Judicial Proceedings, §3-1505 et. seq.). Therefore, it is crucial for advocates and administrators assisting victims of abuse to determine whether the victim should petition for a protective order or a peace order. The relationship between the person to be protected (the petitioner) and the person alleged to have committed the prohibited act (the respondent) determines which type of relief is available to the victim. Generally, a petitioner should file for a protective order if he/she has been involved in one of the following relationships with the respondent: 1) current or former spouse; 2) cohabitant (intimate relationship and lived with respondent for ninety days during the past year); 3) related by blood marriage or adoption; 4) parent, stepparent, child or stepchild, and lived with respondent for ninety days during the past year; 5) vulnerable adult or, 6) child-in-common. All other persons should file for a peace order. This article will focus on judicial proceedings once a determination has been made that a client qualifies for a protective order.
During normal court hours a victim can file a Petition For Protection in either the Circuit or District Court. After a petition is filed, the person requesting relief will appear before a judge for a Temporary Protective Order (TPO) hearing. The hearing will be held on the same day that the petition is filed. If, however, the courts are closed, a petitioner may obtain immediate relief by filing for protection with a District Court Commissioner. An Interim Protective Order (IPO) will be issued if, after a hearing, a commissioner finds reasonable grounds to believe that the alleged abuse occurred. The order will take effect as soon as a law enforcement officer serves the respondent with a copy of the IPO.
The relief granted an individual under the terms of an IPO is within the discretion of the commissioner. A commissioner may order the respondent not to abuse, threaten, contact, attempt to contact, or harass the petitioner. The respondent may also be ordered to stay away from the petitioner’s residence, school, place of employment, temporary residence, or home of a family member. Under certain circumstances, a respondent may be ordered to vacate the home and temporary use of the home may be granted to the petitioner. The petitioner may also be granted temporary custody of a child-in-common, if child abuse is alleged or temporary use of the home is granted to the petitioner. In addition to stating the relief granted in an IPO, the order must designate a time, location, and date for the TPO hearing. It is important to note that any TPO hearing resulting from an IPO will be scheduled at the District Court of Maryland.
The TPO hearing shall be held no later than the second business day after issuance of the IPO, unless continued by a court for good cause shown. Therefore, an IPO is effective until the earlier of the TPO hearing or the end of the second business day that the District Court is open after the granting of the IPO. The procedure allowing for issuance of an IPO eliminates the certainty that the TPO hearing be ex parte. Service of an IPO ensures that the respondent has written notice of the TPO hearing. As such, a respondent may appear at the hearing. If both parties appear for the TPO hearing the court may proceed directly to the final merits hearing only if the respondent was served with the IPO and both parties expressly consent to bypass the TPO hearing. However, if either requirement is not met, or if the respondent does not appear, the TPO hearing will proceed as scheduled.
The terms of a TPO are within the discretion of the fact finder. The relief available to a petitioner at the TPO phase is similar to that attainable through an IPO, with two notable exceptions. First, the issuance of custody to a petitioner is not limited to cases in which child abuse has been alleged or the respondent was ordered to vacate the home. Second, a specific provision requiring a respondent to refrain from visiting the school or daycare provider of a child-in-common is available at the TPO stage. In order for a judge to issue a TPO, there must exist reasonable grounds to believe that the alleged abuse occurred. This is the same standard of proof required for issuance of an IPO. A TPO must also designate the time, date, and location for the FPO hearing.
Generally, the FPO hearing will be held within seven days after the issuance of a TPO. A TPO may, however, be extended for up to thirty days from the date of issuance in order to obtain service upon a respondent or for other good cause. Service of the TPO affords the respondent notice and an opportunity to be heard regarding the alleged abuse. If a respondent is served with the TPO, a judge may grant any and all relief available to a petitioner under the statute. Therefore, a respondent is not required to appear in order for a court to proceed with the FPO hearing. A respondent who fails to appear will, however, be subject to all of the terms of the FPO.
A petitioner's last step in obtaining relief from abuse is appearance at the FPO hearing. It is imperative that the petitioner appear for all hearings scheduled as a result of the petition for protection. A petitioner's failure to appear at either a TPO or FPO hearing will necessitate the dismissal of the case. If both parties appear for the hearing, a FPO may be issued upon consent of the respondent without a finding of fact or if the court finds clear and convincing evidence of the alleged abuse after a full evidentiary hearing. The court may also issue a FPO by way of default if a respondent is served but fails to appear at the FPO hearing, and the petitioner wishes to go forward with the hearing. Therefore, the terms of a FPO will either be reached through agreement of the parties or by judicial discretion after a hearing on the merits. A judge may grant a petitioner all of the protections available at earlier stages in the process. Additional relief available under a FPO includes, but is not limited to, financial support, counseling, firearm surrender, and use and possession of a vehicle. A FPO can be issued for a term of one year, and may be extended by six months for good cause.
By mid-February 2003, Maryland District Court Commissioner's Office issued nearly nine hundred (900) IPOs. For victims of violence, the authorization of District Court Commissioners to issue interim orders affords them access to judicial protections on a twenty-four hour a day, seven day a week basis. Survivors, advocates and law enforcement officers have long recognized that emergency domestic situations often occur during hours when the courts are closed. Therefore, the increased coverage is crucial to the health and safety of persons in need of immediate relief from abuse. Previously, the sole protection for victims harmed during evenings, holidays or weekends, was to request criminal charges against their abusers. This option severely limits a victim's course of action, and alienates many victims who are reluctant to institute criminal proceedings against their abusers. It is the hope of victim advocates that expanding the powers and duties of District Court Commissioners will not only increase public safety, but will serve to decrease frustration and hopelessness among persons that have already endured traumatic situations.
For additional information regarding domestic violence and the recent“24/7”legislation, please see: www.wlcmd.org; www.hruth.org; www.mlis.state.md.us; www.mnadv.org; www.oag.state.md.us; and www.peoples-law.org.
Melissa K. Mineo, Esq. is a staff attorney for The Women’s Law Center of Maryland, Inc. in its Protection Order Advocacy and Representation Project located in the Circuit Court for Baltimore City.
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