Stuart Muntzing Skok

HANDBOOK ON DOMESTIC VIOLENCE LAW IN MARYLAND 
^{© 2008 Gimmel, Weiman, Ersek, Blomberg & Skok, P.A.}

      A.     Immediate Action to Take In Event of Domestic Violence

Keep in mind that an abuser may try to make you believe that they have the right to abuse you and you may feel guilty and ashamed of the abuse. Remember that NO ONE DESERVES TO BE ABUSED AND NO ONE HAS THE RIGHT TO ABUSE. If you or your children are in an abusive situation, seeking help from the police, your attorney and others is the first step to stopping the violence.

Domestic violence can consist of a pattern of behavior or a single isolated event against you or someone in your family. Under the law, “ABUSE” is defined as:

• An act that causes serious bodily harm or places an individual in fear of imminent serious bodily harm
   
• An assault in any degree
   
• Rape or sexual offense or attempted rape or sexual offense
   
• False imprisonment (keeping an individual in a place against his/her will)
   
• Stalking
   
• Child abuse (physical or mental, but not including “reasonable punishment” by a parent or stepparent)
   
• Abuse of a vulnerable adult

In the event of ABUSE, you should do the following:

1. CALL THE POLICE as soon as possible to report the incident. The police will issue a report, may arrest the abuser and may file criminal charges against the abuser. The police should also advise you of your rights and options for seeking criminal penalties and further protection from the abuser.
    
2. SEEK MEDICAL ATTENTION if necessary for any injuries sustained as a result of the abuse. Be sure to obtain a copy of any medical report and have someone take pictures of the injuries or property damage caused by the abuser.
    
3. SEEK SHELTER in an alternative residence if it is not safe for you to remain in your home, along with your children for their protection. For crisis counseling, shelter and other services for victims of abuse, you can contact the Abused Persons Program in Montgomery County at 1301 Piccard Drive, 1st Floor, Suite 1400, Rockville, Maryland, (240) 777-4210.
    
4. REMOVE YOUR PERSONAL CLOTHING AND EFFECTS FROM YOUR HOME with the assistance of the police (if you are not staying in the home). The police are required to accompany any victim of abuse to the family home so that the individual can remove personal clothing and effects for that individual and any child in their care, including medicine or medical devices (regardless of who paid for them).
    
5. FILE FOR A PROTECTIVE ORDER, either with the assistance of your attorney or through resources available in the District or Circuit Court.

B. Are You Eligible for a Protective Order?

Under Maryland Family Law Article §4-501, you are a “person eligible for relief” for a Protective Order if:

• You are the current or former spouse of the abuser
   
• You are a cohabitant of the abuser (a person who has had a sexual relationship with the abuser and who resided with the abuser for at least 90 days within 1 year before filing of the Petition)
   
• You are related to the abuser by blood, marriage or adoption (such as a son, daughter, niece, nephew, grandparent)
   
• You are a parent, stepparent, child or stepchild of the abuser or person eligible or relief who has lived with the abuser or person eligible for relief for at least 90 days within 1 year before the filing of the Petition
   
• You are a vulnerable adult (who is physically or mentally unable to provide for your daily needs)
   
• You are an individual who had a child with the abuser (regardless of marriage or residence with the abuser)

If you are a victim of domestic violence who does not qualify for a PROTECTIVE ORDER, you may seek similar protection from abuse in the form of a PEACE ORDER under Courts and Judicial Proceedings Article §§ 2-607 et. seq. and 3-1501 et. seq. (the subject of which is not covered in detail herein).

For example, unrelated neighbors who have a domestic dispute would file for a PEACE ORDER rather than a PROTECTIVE ORDER. A PEACE ORDER can provide relief similar to a Protective Order (e.g. an order to stay away) plus additional relief not available in a Protective Order (e.g. an order to cease harassment or trespassing).

A PEACE ORDER is obtained through the District Court, whereas a PROTECTIVE ORDER can be obtained through the District or Circuit Court.

For more information about when to file for a PEACE ORDER instead of a PROTECTIVE ORDER, go to www.courts.state.md.us./district/pobr.pdf.

Under a law effective as of December 18, 2002, victims of domestic violence can obtain INTERIM PROTECTIVE ORDERS at night and during weekends, when the courts are closed and when many of the domestic violence incidents occur. Prior to this law change, victims were only permitted to obtain Protective Orders when Courts were open.

District Court COMMISSIONERS will issue the INTERIM Protective Orders if they believe there are “reasonable grounds to believe that the Respondent has abused a person eligible for relief.” This is a fairly low standard, similar to “probable cause” in a criminal case.

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D. Step 1: Interim Protective Order (IPO)

There are District Court Commissioners for each county in Maryland who are available after Courts close at 4:30 p.m. to issue INTERIM Protective Orders. In order to determine how to locate the Commissioner in your jurisdiction, go to the state Court’s website at www.courts.state.md.us and click on Courts, District Courts and Commissioners. For Montgomery County, the telephone number for the Rockville Commissioner located at 1307 Seven Locks Road is (301) 610-7217.

The Commissioner can issue an INTERIM Protective Order to stay in effect until the 2nd business day after the Courts reopen, when the Court holds a TEMPORARY Protective Order hearing (for example, if you receive an Interim Order on Saturday, it would stay in effect until Tuesday). In the INTERIM Protective Order, the Commissioner can order the Respondent:

• To stop abuse or threats of abuse of the victim
   
• To stop contacting, attempting to contact or harassing the victim
   
• To stay away from the victim’s home
   
• To vacate the home and award the victim custody of any child in the home and temporary use and possession of the home, provided that the victim and the Respondent are residing together at the time of the alleged abuse
   
• If there is an allegation of child abuse, an award of temporary custody of the children
   
• If there is an allegation of abuse of a vulnerable adult, an award of temporary use and possession of the home to an adult living in the home
   
•  To stay away from the victim’s place of employment, school or temporary residence (the fact that the Commissioner cannot order the Respondent to stay away from a child care provider was a legislative oversight)
   
• To stay away from the home of any family member of the victim

If both parties file for an INTERIM Protective Order, the Commissioner may issue two (2) Orders if both parties are eligible under the “reasonable grounds” standard. However, the Commissioner will try not to enter conflicting orders.

The INTERIM Protective Order will also state the day, time and location of the required TEMPORARY Protective Order hearing and a tentative date, time and location for the FINAL Protective Order hearing.

All TEMPORARY Protective Order hearings will be held in the District Court and the Commissioner’s findings in the INTERIM Protective Order are not binding in any way upon the Judge who hears the TEMPORARY Protective Order hearing.

The date for the FINAL Protective Order hearing may change if the TEMPORARY Protective Order is continued (allowed up to 30 days) or if the case is transferred from the District Court to the Circuit Court. The case may be transferred to the Circuit Court by the District Court Judge at the TEMPORARY Protective Order hearing if there is a pending domestic action in the Circuit Court.

The INTERIM Protective Order can only be served on the Respondent by law enforcement. The Commissioner will forward a copy of the Order to the law enforcement for service. The Commissioner should advise the Petitioner who to contact to find out whether the Respondent has been served.

The Commissioner should also give the Petitioner two (2) copies of the INTERIM Protective Order so that any law enforcement can serve the Respondent with the Petitioner’s copy of the Order (in case the victim locates the Respondent and the officer who was forwarded the Order cannot be located immediately).

E. Step 2: Temporary Protective Order (TPO) (formerly “Ex Parte Order”)

This is the first hearing held by a Judge after the Courts reopen. The hearing will be set for approximately 20 minutes. If you do not need an INTERIM Protective Order when the Courts are closed, you should simply wait until the Courts reopen to seek a TEMPORARY Protective Order.

In Montgomery County, if you have first obtained an INTERIM Protective Order, your TEMPORARY Protective Order must be held in the District Court. If you have not obtained an INTERIM Protective Order, it is usually advisable to seek a TEMPORARY Protective Order through the CIRCUIT COURT, due to the docket restraints of the DISTRICT COURT.

The purpose of a TEMPORARY Protective Order hearing is to provide temporary relief to a Petitioner under the “reasonable grounds” standard for up to 7 days, at the end of which there is a FINAL Protective Order hearing where both parties have an opportunity to put on evidence as to whether there is “clear and convincing evidence” of abuse to warrant the continuation of a Protective Order for up to 1 year.

If an INTERIM Protective Order was issued, the TEMPORARY Protective Order hearing will be held in the District Court by the 2nd business day after the Courts reopen. At the hearing, the Judge can order the following relief (italics reflect the relief that differs from the relief available in an Interim Protective Order):

• To stop abuse or threats of abuse of the victim
   
• To stop contacting, attempting to contact or harassing the victim
   
• To stay away from the victim’s home
   
• To vacate the home and award temporary use and possession of the home to the victim, provided that the victim and the Respondent are residing together at the time of the alleged abuse
   
• To stay away from the victim’s place of employment, school or temporary residence or residence of other family members
   
• To stay away from the child care provider
   
• Award temporary custody of the children

In addition, if the Judge finds that there are “reasonable grounds” to believe there has been abuse of a child or vulnerable adult, the Court will forward the Petition and TEMPORARY Protective Order to the Department of Social Services (DSS) for an investigation. The Department is required to send a copy of its report of investigation to the Court prior to the FINAL Protective Order hearing.

If the Petitioner was granted an INTERIM Protective Order, the Petitioner must appear for the TEMPORARY Protective Order hearing or the case will be dismissed. If the Respondent appears for the TEMPORARY Protective Order hearing and does not consent to the TEMPORARY Protective Order, the hearing on the TEMPORARY Protective Order will proceed without Respondent’s participation in the hearing by testimony or cross-examination.

If the Respondent has been served with the INTERIM Protective Order and does not show up for the TEMPORARY Protective Order hearing, the Petitioner can proceed with the hearing and, if granted, the Respondent will be served with the TEMPORARY Protective Order by first-class mail (the Respondent does not need to be personally served with the Order by law enforcement).

If the Respondent has been served with the INTERIM Protective Order and appears for the TEMPORARY Protective Order hearing, the Judge may proceed with hearing the FINAL Protective Order only if both parties consent to waive the TEMPORARY Protective Order hearing. If the parties do not consent to waive the hearing, the FINAL Protective Order hearing will be scheduled within 7 days.

If the Petitioner has an INTERIM Protective Order and the Respondent has not been served with the Order, the Petitioner will have to reapply for a TEMPORARY Protective Order at the time of the TEMPORARY Protective Order hearing (simply by using the original INTERIM Protective Order Petition). The Respondent must then be served with the TEMPORARY Protective Order by law enforcement. If the Order is not served on the Respondent within 7 days, it can be extended in 7-day increments for up to 30 days. Thereafter, if there is no service, the case will be dismissed.

F. Step 3: Final Protective Order (FPO) (formerly “Protective Order Hearing”)

The FINAL Protective Order hearing is the second hearing before a Judge, where the Judge will hear evidence from both parties and decide whether there is “clear and convincing evidence” that the alleged abuse occurred. “Clear and convincing evidence” is a very high standard, far greater than “reasonable grounds” for an INTERIM or TEMPORARY Protective Order.

Before the hearing, it is important for you and your attorney to explore the possibility of entering into a CONSENT Protective Order “without a finding of abuse” against the Respondent. A CONSENT Protective Order is where both parties agree to the entry of the Protective Order, as well as to the duration of the Order (up to 1 year) and any terms for custody, visitation and/or maintenance.

It may be advisable for a Respondent to enter into a CONSENT Protective Order to avoid a potential finding by the Court that abuse occurred and to negotiate desirable terms for custody, visitation and maintenance. It may be advisable for the victim to enter into a CONSENT Protective Order to avoid a potential finding by the Court that no abuse occurred and also to negotiate desirable terms for custody, visitation and maintenance.

Keep in mind that a CONSENT Protective Order has the same effect as a FINAL Protective Order. CONSENT Protective Orders cannot be appealed under Suter v. Stucky, 2007 WL 3355486.

A FINAL Protective Order can be effective for up to 1 year. Before the termination of the Order, the Petition can request an extension of the Order for up to 6 months upon a showing of good cause (which does not require a new incident of abuse). The law is not clear on whether a Petitioner may seek more than 1 extension of 6 months.

Under Katsenellenbogen v. Katsenellenbogen, 365 Md. 122 (2001), the standard for granting a protective order is an “INDIVIDUALIZED OBJECTIVE STANDARD” of a reasonable person in the victim’s shoes. A person who has been abused may be sensitive to non-verbal signals or code words that have proven threatening in the past to that victim, but which someone else may not perceive as threatening. The Court’s focus is to do whatever is reasonably necessary to protect the victim without considering the effect on subsequent litigation.

Under Coburn v. Coburn, 342 Md. 244 (1996), PAST INCIDENTS OF ABUSE ARE ADMISSIBLE in a protective order hearing, even if they are not specifically mentioned in the Petition. You should determine with your attorney the extent to which past incidents of abuse should be revealed in your Petition.

The relief available in a FINAL Protective Order is the same relief that is available in a TEMPORARY Protective Order plus some additional relief, designated in italics:

• To stop abuse or threats of abuse of the victim
   
• To stop contacting, attempting to contact or harassing the victim
   
• To stay away from the victim’s home
   
• To vacate the home and award temporary use and possession of the home to the victim, provided that the victim and the Respondent are residing together at the time of the alleged abuse
   
• To stay away from the victim’s place of employment, school or temporary residence or residence of other family members
   
• To stay away from the child care provider
   
• Award temporary custody of the children
   
• Establish visitation with the children or restrict visitation (including denial or supervision) if appropriate to guard the safety of the victim or children
   
• Award “emergency family maintenance” (monetary support) to the victim, along with an Earnings Withholding Order against the Respondent’s employer for payment of the maintenance
   
•  Award temporary use and possession of a jointly owned vehicle to the victim if necessary for employment or care of the child
   
• Direct either party to participate in professionally supervised counseling or a domestic violence program
   
• Order the Respondent to surrender to law enforcement any firearms in possession for the duration of the Protective Order
   
• Order the Respondent to pay filing fees and costs of the proceeding

The Court may issue MUTUAL Protective Orders (by 2 separate Orders) to both parties only if the Court finds by “clear and convincing evidence” that mutual abuse has occurred. A Cross-Petition must be filed to obtain MUTUAL Protective Orders. The Court must make a detailed finding that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.

When the Court considers EMERGENCY FAMILY MAINTENANCE, the amount of the award is based on the victim’s needs and the resources available to the victim and the Respondent. The Court will look at the Maryland Child Support Guidelines as a guide to determining the appropriate amount of maintenance. The Judge may also enter an EARNINGS WITHHOLDING ORDER against the Respondent’s employer for payment of maintenance.

The Court must consider the following factors to order Respondent to VACATE YOUR HOME:

• The “home” must be the principal residence of the victim and owned, rented or leased by one of the parties or, in a Petition alleging child abuse or abuse of a vulnerable adult, by an adult living in the home at the time of the proceeding
   
• The housing needs of the child
   
• The duration of the parties’ relationship
   
• Title to the home
   
• Any criminal charges against Respondent
   
• The history and severity of abuse in the parties’ relationship
   
• The existence of alternative housing for either party
   
• The financial resources of the parties

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G. Forms To File For Protection

In Montgomery County, always use the COURT FORMS for filing domestic violence cases, including an action for modification or contempt of an existing Protective Order. Additional information or allegations which do not fit on the forms may be attached to the forms.

Failure to use the Court forms may result in a delay in the handling and processing of your case. To obtain a copy of the current Court forms, go to www.courts.state.md.us to print or download the forms. Always put your LAST NAME FIRST on all of the forms so that your case is properly entered into the Court system.

If you are required to file a FINANCIAL STATEMENT (when seeking maintenance), you should provide totals for your monthly expenses so that the Court can easily compare your income with your expenses. The Financial Statement will be required to be filed at the TEMPORARY Protective Order Hearing.

H. Resources

You should work closely with your attorney while going through the process of seeking protection from domestic violence. In Montgomery County, there are also resources in both the DISTRICT COURT (Abused Persons Program) and the CIRCUIT COURT (Abused Persons Program, Domestic Violence Assistance and ALERT Team) to assist victims of domestic violence.

Additionally, the House of Ruth Domestic Violence Legal Clinic provides assistance to victims. The 24-hour hotline number is (888) 880-7884. During the day, there are attorneys available to answer questions. During nights and weekends, there are counselors on staff to answer questions and offer advice on crisis planning.

For a Summary of Resources, see Section M of this Handbook.

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I. Violations of Protective Orders

If you have a Protective Order that the Respondent has violated, the Respondent may be subject to arrest, criminal prosecution, imprisonment, fine and/or a finding of Contempt. You should immediately contact the police and/or your attorney in the event of any violation.

Violation of the “STAY AWAY” provisions of your Protective Order will automatically subject the Respondent to immediate arrest without a warrant. In such event, you should call the police and file criminal charges with the Commissioner for the violation.

If the Respondent has refused to surrender FIREARMS, you can also report this to the Commissioner. Keep in mind that when an individual is subject to a Protective Order, by consent or otherwise, it is illegal to possess or use firearms, the violation of which could subject the individual to a jail sentence of up to 10 years.

Violations of other terms of the Protective Order, such as the failure to pay maintenance or adhere to the visitation schedule will not subject the Respondent to arrest and should be enforced by filing a Petition for CONTEMPT.

J. Modifications of Protective Orders

Either party may seek a MODIFICATION or RESCISSION of a Protective Order during the term of the Order. A Protective Order may be modified or rescinded only after giving notice to the parties and a hearing.

As previously stated, the Court may EXTEND the term of the Protective Order for up to 6 months after notice and a hearing and for good cause shown (which does not require a new incident of abuse).

K. Appeals of Protective Orders

If the DISTRICT COURT grants or denies relief on a Petition for Protection, either party may appeal to the Circuit Court within 30 days from the entry of the Order. If an appeal is filed, the other party may also file an appeal within 10 days from the date the first notice of appeal was filed (if that party is not pleased with certain provisions of the Order). The Circuit Court will hear the case “de novo” (a new trial which does not consider the record of the District Court hearing). The District Court Order will remain in effect pending the appeal.

If the CIRCUIT COURT grants or denies relief on a Petition for Protection, either party may appeal to the Court of Special Appeals within 30 days from the entry of the Order. If an appeal is filed, the other party may also file an appeal within 10 days from the date the first notice of appeal was filed (if that party is not pleased with certain provisions of the Order). Unlike for appeals to the Circuit Court, an appeal to the Court of Special Appeals is based solely on the record from the Circuit Court, a copy of which must be provided to the Appeals Court.

CONSENT Protective Orders cannot be appealed under Suter v. Stucky, 2007 WL 3355486.

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L. Conclusion

Under the new law, there is a two- or three-step PROCESS for victims who need protection from domestic violence. The first step is applicable only to victims who need protection when Courts are closed:

1. INTERIM Protective Order (IPO) by a District Court Commissioner for up to 2 business days after the Court reopens granted on “reasonable grounds”
    
2. TEMPORARY Protective Order (TPO) by a District or Circuit Court Judge for up to 7 days granted on “reasonable grounds”
    
3. FINAL Protective Order (FPO) by a District or Circuit Court Judge for up to 1 year, with an extension for up to 6 months, granted on “clear and convincing evidence”

The only thing that matters when considering whether and when to file for protection against domestic violence is the HEALTH AND SAFETY OF YOU AND YOUR FAMILY. One should not file for a Protective Order in an attempt to gain leverage in his or her divorce or custody case or just because your spouse has filed for protection. The Court is keenly aware of such tactics and will not allow a party to prevail in an improper use of the Court’s resources.

However, you should not be discouraged or reluctant to file for necessary protection for fear of allegations that you are seeking leverage in the divorce or custody case or that you are “crazy.” Such allegations are common in defense of a claim for abuse protection and will not deter the Court from granting the appropriate relief.

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M. Summary of Resources

The following is a list of the RESOURCES referenced in this Handbook:

• Locating a District Court Commissioner: www.courts.state.md.us: go to Courts, District Courts, Commissioners
   
  • Montgomery County Commissioner, 1307 Seven Locks Road, Rockville: (301) 610-7217 (open weekdays 4:30 p.m. to 8:30 a.m. and Friday 4:30 p.m. to Monday 8:30 a.m.)
     
• Domestic Violence Court Forms: www.courts.state.md.us: go to Court Forms, Family Law Forms
   
• House of Ruth Domestic Violence Legal Clinic 24-hour Hotline:
  (888) 880-7884 (for legal advice and crisis counseling)
   
• Montgomery County Abused Persons Program, 1301 Piccard Drive, 1st Floor, Suite 1400, Rockville, Maryland, (240) 777-4210 (for crisis counseling, shelter or other services)
   
• Circuit Court Abused Persons Program: Montgomery County Judicial Center, 3rd Floor, Room 307, 50 Maryland Avenue, Rockville, Maryland 20850, (240) 777-9097 (for assistance in filing for Protective Order)
   
• Montgomery County Sheriff’s Office Domestic Violence Unit
  (ALERT Team): (240) 777-7016 (open 24 hours) (to have officer accompany victim to home to retrieve belongings, to determine if Respondent has been served with Protective Order, to arrange surrender of firearms, to schedule supervised visitation, to offer safety resources such as security systems or cellular telephones)
   
• Peace Order Information: www.courts.state.md.us./district/pobr.pdf
   
• Peace Order Mediation Program, District Court (for non-violent cases): http://www.courts.state.md.us/district/forms/general/dc44br.html

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