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The Same Sex Couples Guide to Protective Orders

As we have previously stated the new same sex marriage law will not only allow those in same sex relationship to now marry, but also to divorce, and will affect many other areas of family law. While those in same sex relationships may have been able to obtain a protective order previously, there may be some changes to the process for them.

A protective order can be awarded to only specified individuals, termed “persons eligible for relief.” To be a person eligible for relief one must be: the current or former spouse of the respondent; a cohabitant of the respondent; a relative of the respondent by blood, marriage or adoption; or 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 Maryland Code, Family Law 4-501. While the same-sex couples did qualify under the cohabitant category previously, they, along with all others alleging to be cohabitants, had to prove they both had a sexual relationship with the respondent and resided in the same home for at least 90 days within one year of filing the petition. This may have required same sex couples to admit to sodomy, which remains a crime in Maryland. Now, those same sex couples who are married will fall under the current or former spouse category and will no longer have to prove the sexual relationship.

There are three potential stages to obtaining a protective order. First, is the Interim Protective Order, which 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.

Second, the Temporary Protective Order, which 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 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.

Last, the Final Protective Order, which is issued after a hearing in which the alleged abuser has the opportunity to appear before the court, if the Judge finds clear and convincing evidence that the abuse has occurred, or if the alleged abuser consent to the entry of the protective order. A final protective order can be effective for up to 12 months, and, effective October 1, 2009, under certain circumstances for 2 years or permanently. When entering a Final Protective Order the Judge can award temporary custody of a minor child of the alleged abuser and a person eligible for relief; establish temporary visitation with a minor child of the alleged abuser 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; and award emergency family maintenance as necessary to support any person eligible for relief to whom the alleged abuser has a duty of support. Those same sex couples going through the protective order process who could not prove that they were both legal parents to the minor child, will no longer have this issue. This custody provision of the Order is specifically relevant to same sex couples who will now be able to wed, because the child will now be the legal child of both parties, instead of just one. Therefore, they will be eligible for this relief under the protective order statute.

For more information on protective orders contact an experienced Maryland Family Law Attorney.

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