Articles Posted in Protective Orders

Effective October 1, 2010, in the State of Maryland a victim of domestic violence who has obtained a final protective order may terminate a residential lease without penalty. For more information on protective orders, see our August 16, 2009 blog. The tenant is given thirty days to leave the property, and will be responsible for the rent during the thirty day period. This legislation was introduced in an effort to aid victims of domestic violence if a change of housing is necessary. Further, this law creates a rebuttable presumption that the victim has not breached the lease agreement if the landlord attempts to evict the domestic violence victim as a result of the abuser’s behavior. If a tenant does not choose to leave the leased property, they may request that the landlord change the locks. In that event, the tenant will be responsible for the fee.

For more information on domestic violence proceedings contact an experienced Maryland family law attorney.

If the respondent (alleged abuser) in a protective order proceeding has a protective order entered against them, what are the petitioner’s (alleged victim of abuse) options if the respondent violates the order? A violation of the protective order is any action the respondent takes that violates the provisions the judge ordered at the time of the hearing (no contact, no abuse, no harassment, emergency family maintenance, drug/alcohol/anger counseling). This violation can occur in an interim, temporary or final protective order situation (see August 16, 2009 blog for more information on types of protective orders).

Although the protective order is civil in nature, the violations of certain safety provisions of the order are considered criminal violations. If the respondent violates the provisions of the protective order that order no contact, no harassment, no abuse, the petitioner has the option of calling the police, or filing charges on their own. If the police witness the violation or have enough evidence to believe the violation occurred, they have the authority to arrest the respondent. The petitioner also has the option of filing criminal charges with the commissioner. A conviction for a violation of a protective order can result in imprisonment and/or fining of the respondent. Specifically, for a first offense, a fine is not to exceed $1,000.00 and imprisonment is not to exceed 90 days, and for a second or subsequent offense, a fine is not to exceed $2,500.00 and imprisonment is not to exceed one year.
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I recently represented a Respondent (the person against whom the protective order has been filed) in a Final Protective Order hearing in the Circuit Court for Baltimore County, where the Petitioner alleged that he was placed in fear of serious imminent bodily harm by his wife, the Respondent. When representing the Respondent in such a proceeding it is imperative to know what the other side must prove in order to have a final order granted by the Court and how to gather evidence to refute those allegations. In this case, it was the husband’s burden to prove by clear and convincing evidence the alleged abuse had occurred (see August 16, 2009 blog for specific statutory criteria). By the nature of the protective order process, there often is not enough time in between a client coming in to meet with you to represent them and the Final Hearing date, which can impede obtaining necessary information in a complicated matter. In this situation, although time was an issue, I was able to obtain the 911 calls, the transcript of the Temporary Protective Order hearing, and issue subpoenas to various witnesses, which included friends, family members, police officers, therapists and physicians.

In this particular case, the Husband’s Petition was dismissed at the conclusion of his case after the Court heard argument on my oral Motion for Judgment. Pursuant to Maryland Rule 2-519, when a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made. In non-legal jargon, the Court, in my case, concluded that even after looking at all of the evidence presented by the Petitioner/Husband, in the light most favorable to him, there was still not enough evidence to meet the legal standard to enter the Final Protective Order, all before I had to put on a single witness. Albeit, the preparation still paid off in the cross examination of the Petitoner.
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In the wake of the recent legislation signed by Governor O’Malley mandating Judges to order the surrender firearms as part of a final protective order, and authorizing Judges to order the surrender of firearms as part of a temporary protective order, it is helpful to differentiate between the two, and in addition explain the interim protective order.

An Interim Protective Order allows for domestic violence protective orders to be available 24 hours a day, 7 days a week. District Court Commissioners are available at any hour of the day and can issue an interim protective order if there is “reasonable grounds to believe” that the alleged abuser (the Respondent) has abused the person eligible for relief. This protective order lasts for up to 48 hours after the courts re-open, after which the individual seeking protection (the Petitioner) must seek a temporary protective order to extend the interim order.

A Temporary Protective Order is only issued after a hearing before a Judge. If the Judge finds that there is reasonable grounds to believe that the person eligible for relief has been abused then he or she may enter a temporary protective order, which will last for up to 7 days. However, the Judge may extend the temporary order for up to 30 days if good cause exists, prior to the final hearing (effective October 1, 2009 the temporary order may be extended for up to 6 months to effectuate service or for good cause). The Judge is authorized to order the alleged abuser to surrender all firearms when issuing a temporary protective order. Additionally, the Judge can order the alleged abuser to refrain from abuse or threats of abuse of the person eligible for relief, order the alleged abuse to refrain from contacting, attempting to contact, or harassing the person eligible for relief; order the alleged abuser to refrain from entering the residence of the person eligible for relief; order the alleged abuser to vacate the home immediately and award temporary use and possession of the home to the person eligible for relief; order the alleged abuser to remain away from the place of employment, school, or temporary residence of the person eligible for relief or home of other family members; order the alleged abuser 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; and award temporary custody of a minor child of the person eligible for relief. The temporary protective order additionally states the date of the final protective order hearing, which is generally set 7 days after the temporary protective order has been entered.