The Process in Obtaining a Protective Order in Maryland
Our Lawyers Can Tell Your Side of the Story After You Are Served With a Temporary Protective Order
Go to almost any Courthouse, District or Circuit, anywhere in Maryland, and you are likely to find a Protective Order on the docket for that day. A Protective Order is a civil case that is processed differently by the Court than most other kinds of cases.
Sometimes, a complainant goes to the Commissioner’s Office and begins the process there. There is a form that is filled out under the penalties of perjury that begins the process. If the Commissioner believes “reasonable grounds” exist to issue an Interim Order, they do so. The case is then set in front of a Judge for a hearing on the Interim Order within 48 business hours to decide if what the Commissioner did was correct, called a Temporary Protective Order hearing.
Many times, the complainant does not go to the Commissioner’s Office but goes straight to the Court to get the Temporary Order. The complainant not only fills out the request forms, but also appears in front of a Judge to testify directly about their allegations. This is done on a ex parte basis, meaning the person against whom the order is sought is not given notice to be there, and the Judge decides what to do based on hearing just one side of the story. This Temporary Order can stay in place for up to 30 days.
In order to get a Temporary Protective Order, there are two things Judges focus on. The first is whether the complainant has a relationship with the respondent (the name for the Defendant in these proceedings) that allows them to even ask for a Protective Order. These include:
- A current or former spouse
- A cohabitant with the respondent
- A person related to the respondent by blood, marriage, or adoption
- A parent, step-parent, child, or step-child of the respondent, or the complainant, who lived with the respondent or complainant for at least 90 consecutive days within the year before the filing of the Protective Order.
The second area judges focus on is the conduct alleged to have happened that’s caused the complainant to seek help from the courts. The reasons that form the basis for a Protective Order are not the same as for a Peace Order, and in fact they are quite different. In order to get a Protective Order, the complainant must allege:
- An act that causes serious bodily harm
- An act that places the complainant in fear or serious bodily harm
- Assault (first or second)
- Rape or a sexual offense
- False Imprisonment
After a Judge establishes these two things, the judge then must decide what to do pending a full hearing. Most Judges will take a cautious approach and order more relief rather than less, knowing the relief at this stage is temporary, and can be changed at the final hearing, which usually happened within a week or so. Pending this final hearing, the Court can order a lot of different things to happen. The most common are:
- No contact between the complainant and the respondent.
- Custody of children between the complainant and the respondent.
- An investigation of the respondent by the Department of Social Services (if there is an allegation of abuse of a child).
- That the respondent vacate the home they shared.
Being served with one of these Protective Orders by a police officer or deputy sheriff is a disconcerting feeling. Sometimes, the respondent is only given a few minutes by the police to gather a few things and to vacate the home pending the final hearing.
At the final hearing, which usually happens about a week after the Temporary Order is issued, the complainant bears the burden of proof. The burden is high, clear and convincing evidence, the highest civil standard of proof. When the respondent is served with the Temporary Order, they are given notice of the time, placer, and date of the final hearing. This is the respondent’s first real opportunity to be heard in court and to tell their side of the story.
At the hearing, the complainant goes first. After putting on evidence of their relationship to the respondent, the complainant puts on evidence of the harm they described in their complaint. Beyond that harm, the respondent can put on evidence of past acts between the two to help prove what the length and scope of the final order should be. The complainant must also put on additional evidence, which varies depending on the relief they request. Then the respondent has a chance to call their own witnesses or to testify themselves about any of the areas the complainant testified about. This is a contested trial, and both side have the right (and are encouraged by the Court) to have lawyers present to help them with theses trials.
At the end of the trial, the Judge issuing a Protective Order has a lot of relief to consider. It includes, but is not limited to:
- No contact between the complainant and the respondent
- Custody of children between the complainant and the respondent
- Visitation between children and the respondent
- Use and possession of the family home or cars
- Emergency family maintenance (a possible combination of child support and alimony)
A Protective Order is an extremely important part of the process. If someone is charged with a crime for the same conduct as the Protective Order is based on, it gives a respondent a chance to test those allegations. If children or a divorce is involved, it sets the status quo for what will be in place until a Circuit Court can hold a Pendente Lite hearing to determine child access, alimony, and child support, sometimes months down the road. It can also involve someone being removed from their home, a serious consequence.
As with domestic violence in general, the court system is sensitive to these cases. They often receive priority in scheduling, even over other cases that were scheduled months before. They can be an opportunity to achieve something positive in an otherwise difficult situation, or they can have disastrous consequences. Because of the potential for harm, and the opportunity to improve an otherwise unmanageable situation, it is important to have a criminal defense lawyer experienced in handling these kinds of cases.
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