Domestic Violence: Legal Steps in Obtaining a Maryland Protective Order

A petition for a protection from domestic violence, commonly called a Protective Order, may be filed in any District Court or Circuit Court in Maryland.  The Domestic Violence Protection Order form may be downloaded from here or can be obtained in each County Clerk’s office.   As you will see, there are three types of Protective Orders: an Interim Protective Order, a Temporary Protective Order and a Final Protective Order.

Temporary Protective Orders

After you complete and file the Application for a Temporary Protective Order (TPO), you will immediately have your hearing, if it is during normal business hours.  If you need assistance and the courts are closed, contact a District Court Commissioner to file for a Temporary Protective Order (TPO) at any time of the night or day.  In this event, your hearing will generally be scheduled for the next business day.  An Interim Protective Order (IPO) can be issued by a District Court Commissioner for up to 2 business days after the Court reopens granted on reasonable grounds.

Definitions of Abuse under Md. Code, Family Law (“FL”) §4-501(b)

  • An act that causes serious bodily harm;
  • An act that places a person eligible for relief in fear of imminent serious bodily harm;
  • Assault in any degree;
  • Rape or sexual offense or attempted rape or sexual offense in any degree;
  • False imprisonment;
  • Criminal stalking;
  • Child abuse (physical or mental, but not including reasonable punishment by a parent or stepparent); or
  • Abuse of a vulnerable adult

The Ex Parte Temporary Protective Order Hearing

The next step in obtaining a Protective Order is the victim, called the Petitioner, appears before a judge for an ex parte hearing.  An ex parte judicial hearing is when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested.  That means simply that normally the Judge hears from the Petitioner only.  At the hearing, the presiding judge may enter a Temporary Protective Order to protect the Petitioner from abuse and grant emergency relief if the Judge finds that there are “reasonable grounds” to believe that abuse occurred.

To support the allegations of abuse, the Petitioner should present the court with photographs, medical records, witnesses, their own testimony or any other available proof.  The Judge has the discretion to determine whether to issue a Temporary Protective Order based on: the affidavit completed at the time you apply for the initial Application/Petition for a Temporary Protective Order, testimony given by you and/or any other witnesses and other facts and any demonstrative evidence (i.e. medical records, police reports, photographs, etc.) presented.

If the Judge finds that abuse is likely to have occurred, an Order may be issued ordering the abuser, called the Respondent:

  • To stop abuse or threats of abuse of the victim
  • To stop contacting, attempting to contact or harassing the Petitioner
  • To stay away from the Petitioner’s home
  • To vacate the home and award temporary use and possession of the home to the Petitioner, provided that the Petitioner and the Respondent are residing together at the time of the alleged abuse
  • To stay away from the Petitioner’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 any minor children

The Temporary Protective Order goes into effect as soon as a law enforcement officer serves the Respondent and generally lasts seven days unless a judge extends it.

Final Protective Order (FPO)

Hearing for a Final Protective Order

If you obtain a Temporary Protective Order, you must appear in seven days for the final hearing.  This is when your attorney should be standing at our side.  Many Petitioners do not present the evidence that they need to prove their case and then are once again vulnerable to the violence they were attempting to escape.  Unfortunately, should this happen, the petitioner would have to wait to refile until after the next time they are abused.

Proving Abuse

Burden of Proof: A petitioner seeking a permanent order of protection bears the burden of showing by clear and convincing evidence that the alleged abuse occurred. See Ricker v. Ricker, 114 Md.App. 583, 586, 691 A.2d 283 (1997); Md. Code, FL §4-506(c)(1)(ii); Barton v. Hirshberg, 767 A.2d 874 (2001).  Clear and convincing is defined as where the truth of the facts asserted is highly probable; that proof that results in reasonable certainty of the truth of the ultimate fact in controversy.  This burden of proof requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt.

The proper standard for granting a protective order is for determining whether victim’s fear of imminent serious bodily harm is reasonable, thus warranting a protective order.  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. Katsenellenbogen v. Katsenellenbogen, 365 Md. 122, 775 A.2d 1249 (2001).

As this is an important area in proving your case, a bit more detail is necessary.  In Katsenelenbogen, the court in quoting State v. Marr, 362 Md. 467, 765 A.2d 645 (2001) (the standard to be applied in determining whether a criminal defendant offering the defense of self-defense had reasonable grounds to believe himself or herself in apparent or immediate danger of death or serious bodily harm):

We held that an objective standard was to be applied in determining the reasonableness of the defendant’s asserted belief, but we made clear as well: “The objective standard does not require the jury to ignore the defendant’s perceptions in determining the reasonableness of his or her conduct. In making that determination, the facts or circumstances must be taken as perceived by the defendant, even if they were not the true facts or circumstances, so long as a reasonable person in the defendant’s position could also reasonably perceive the facts or circumstances in that way.” Id. at 480, 765 A.2d at 652. We added in Marr that a belief as to imminent danger “is necessarily founded upon the defendant’s sensory and ideational perception of the situation that he or she confronts, often shaded by knowledge or perceptions of ancillary or antecedent events.” Id. at 481, 765 A.2d at 652. The issue, we said, was not whether those perceptions were right or wrong, but whether a reasonable person with that background could perceive the situation in the same way.

Thus, the Court in Katsenelenbogen held that the proper standard for determining whether the victim’s fear of imminent serious bodily harm is reasonable, thus warranting a protective order under the domestic abuse statute, is an individualized objective one-one that looks at the situation in the light of the circumstances as would be perceived by a reasonable person in the petitioner’s position. Md. Code, F.L. §§ 4-501(b), 4-506(c).

The Court in Katsenelenbogen further observed that:

A person who has been subjected to the kind of abuse defined in §4-501(b) may well be sensitive to non-verbal signals or code words that have proved threatening in the past to that victim but which someone else, not having that experience, would not perceive to be threatening.  The reasonableness of an asserted fear emanating from that kind of conduct or communication must be viewed from the perspective of the particular victim. Any special vulnerability or dependence by the victim, by virtue of physical, mental, or emotional condition or impairment, also must be taken into account.” Katsenelenbogen, 365 Md. at 133, 775 A.2d at 1260 ( 2001).

Prior Incidents of Abuse are Admissible

cycleofdv 300x266 Domestic Violence: Legal Steps in Obtaining a Maryland Protective Order

Under Coburn v. Coburn past incidents of abuse are admissible in a protective order hearing, even if they are not specifically mentioned in the Petition.  An experienced Domestic Violence Lawyer knows the proper procedure in gaining admittance of such evidence. Coburn v. Coburn, 342 Md. 244 (1996).

Consent Orders

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.

The Respondent may enter into a Consent Protective Order to avoid a potential finding of abuse by the Court and to negotiate desirable terms for custody, visitation and maintenance. If the Petitioner’s evidence is weak, it may advisable to enter into a Consent Protective Order to avoid a potential finding by the Court that no abuse occurred.  A good attorney can negotiate desirable terms for custody, visitation and maintenance.

A Consent Protective Order has the same effect as a Final Protective Order.  Consent Protective Orders cannot be appealed.

In A Final Protective Order, the Court May Order…

If the Judge finds that the abuse did occur, by clear and convincing evidence, a Final Protective Order may include one (or all) of the following for up to one year:

  • Order the Respondent to stop abusing or to stop threatening to abuse you.
  • Order the Respondent to stay away from you and to refrain from trying to contact you or harass you.
  • Order the Respondent to stay out of and away from your house.
  • If you are married to the Respondent AND you were living with the Respondent at the time of the abuse, the court can order him to leave the home where the two of you live for up to one year.
  • If you are not married to the Respondent, but were living with him at the time of the abuse AND your name is on the lease or deed for the house OR you lived with the Respondent for at least ninety (90) days within the past year, the court can order him to leave the home for up to one year.
  • Order the Respondent to stay away from your job, your school, the place where you may be staying, from your children’s school(s) and/or their place of child care, and from your family members’ homes.
  • Order that you be given temporary custody of any children that you have with the Respondent for up to one year.
  • 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 Petitioner, along with an Earnings Withholding Order against the Respondent’s employer for payment of the maintenance (See below for details).
  • Award temporary use and possession of a jointly owned vehicle to the Petitioner if necessary for employment or care of the child.
  • If you have children with the Respondent, order the Respondent to pay support for the children.
  • Order the Respondent to surrender to law enforcement any firearms in possession for the duration of the Protective Order.
  • Direct either party to participate in professionally supervised counseling or a domestic violence program.

Md. Code, FL §4-506(d).

Mutual Final Protective Orders

The Court may issue Mutual Final Protective 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 by the other party 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.

Factors Considered when Ordering Respondent to Vacate the Home

The Court must consider the following factors to order Respondent to vacate your home:

  • The home must be the principal residence of the Petitioner 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

Md. Code, FL §4-506(d)(4).

Emergency Family Maintenance

When the Court considers Emergency Family Maintenance, the amount of the award is based on the Petitioner’s needs and the resources available to the Petitioner and the Respondent.  The Court will use the Maryland Child Support Guidelines as a guide to determining the appropriate amount of maintenance.  An Earnings Withholding Order may also be entered against the Respondent’s employer for payment of maintenance. Md. Code, FL §4-506(d)(9).

Bottom Line

The health and safety of you and your family should be your primary concern when deciding whether to obtain a Protective order.  Never should you file for a Protective Order in an attempt to gain leverage in your divorce or custody case.  Each and every judge in Maryland’s Court system is highly sensitive to this ploy and they will not allow a party to prevail in such an improper use of the Court’s resources.

On the other hand, an abuser may try to make you believe that they have the right to abuse you.  You may feel guilty and ashamed of the abuse. Remember that no on deserves to be abused an no one has the right to abuse. If you or your children are in an abusive situation, seek help from the police, your attorney and others immediately.

Credit for the video: Domestic Violence, its Effects on Women and Children, and How to Get Out. Created by Lauren Furch and Jamie DeNucci

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6 Responses to Domestic Violence: Legal Steps in Obtaining a Maryland Protective Order
  1. Legal Advice Blogg
    June 15, 2009 | 12:47 am

    [...] Domestic Violence: Legal Steps in Obtaining Maryland Protective … [...]

  2. [...] with every other state in the union. Remarkably, in Maryland, a stalking victim seeking help is required to prove her case with “clear and convincing” evidence, a higher standard than “preponderance of the evidence,” which is the universal [...]

  3. [...] with every other state in the union. Remarkably, in Maryland, a stalking victim seeking help is required to prove her case with “clear and convincing” evidence, a higher standard than “preponderance of the evidence,” which is the universal standard for [...]

  4. [...] with every other state in the union. Remarkably, in Maryland, a stalking victim seeking help is required to prove her case with “clear and convincing” evidence, a higher standard than “preponderance of the evidence,” which is the universal standard for [...]

  5. [...] with every other state in the union. Remarkably, in Maryland, a stalking victim seeking help is required to prove her case with “clear and convincing” evidence, a higher standard than “preponderance of the evidence,” which is the universal standard for [...]

  6. SADEYESJ LEE
    May 18, 2012 | 12:11 pm

    THE PROBLEM WITH MOST OF THE LAWS IN THESE ISSUES,
    ARE THAT ALOT OF WOMEN WILL FILE A FALSE CLAIM FOR THE PROTECTIVE ORDERS,
    THE COURT SEEMS TO ALWAYS SIDE WITH THE WOMEN,
    ANY WOMAN CAN COME IN THE COURTS AND SAY THEY HAVE BEEN ABUSED, ALL THEY SEEM TO NEED IS SOMEONE TO LIE…..SO LIKE IN MY CASE MY WIFE DID THIS TO ME….AND BECAUSE SHE HAD A DAUGHTER AND A SISTER TO SAY THEY THINK I WAS ABUSIVE….AND THAT I SUPPOSEDLY THREATEN HER….SHE WAS GRANTED A YEAR, NOW THE YEAR IS UP..AND SHE IS TRYING TO GET ANOTHER YEAR…OF IT EVEN THO SHE HAS EVEN MOVED OUT OF STATE……THIS NOT THE FIRST TIME SOMETHING LIKE THIS HAS HAPPENED TO ME…
    THERE WAS NO PHIS CAL EVIDENCE, NO PROVE, JUST THE WORD OF FRIENDS OR FAMILY

    I HAVE SAT IN THE COURTS LISTENING TO ALOT OF CASES, AND THE JUDGES 99% OF THE TIME GRANTED THE STAY AWAY ORDERS, EVEN IF YOU ARE MARRIED..TO THE ACCUSER IT LIKE GIVING THEM A INSTANT DIVORCE, BY THE WAY BECAUSE THEN THEY CAM CLAIM YOU AND YOUR SPOUSE HAVE BEEN SEPARATED FOR MORE THAN A YEAR….

    I CAN GO TO THE COURT HOUSE, AND ACCUSE YOU OF DOING SOMETHING TO ME OR CLAIM I SAW U ROBBING A BANK OR SOMETHING AND AS LONG AS I HAVE SOMEONE TO BACK ME UP YOU WOULD BE ARRESTED….

    THE LAWS ARE NOT EQUAL…

    IF MY CASE AND MANY OTHERS HAD WENT TO A TRIAL …..MOST OF THESE CASE WOULD HAVE TO BE THROWN OUT, MY WIFE
    HAS ISSUES….AND HER FAMILY DOESN’T LIKE ME ONE BIT EVERY SINCE WE STARTED DATING…WHICH WAS 6 YEARS AGO WE GOT MARRIED AND FOUR MONTHS LATER DECIDES SHE DON’T WANT TO BE MARRIED AND THEY COME UP WITH THIS SCHEME EVEN HER FAMILY MEMBER GO AROUND BRAGGING THEY GOT RID OF ME …..

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