Domestic Violence Attorneys In Carroll County
The laws relating to domestic violence can be found in the Maryland Annotated Code, Family Law Article, Title 4, Subtitle 5 (hereinafter “the statute”). Domestic means the home, family, or household. Violence, however, is specifically defined under the statute. The primary goals of the Maryland domestic violence statute are preventative, protective, and remedial, not punitive. Essentially, the statute seeks to protect and aid victims of domestic abuse.
Abuse is defined under 4-501 (b)(1) of the statute as any of the following acts:
(i) an act that causes serious bodily harm
(ii) an act that places a person eligible for relief in fear of imminent serious bodily harm
(iii) assault in any degree
(iv) rape or sexual offense or attempted rape or sexual offense (as those terms are defined under the criminal law statute)
(v) false imprisonment
(vi) stalking (as defined under the criminal law statute)
Under 4-501 (b)(2) of the statute, if the person allegedly abused is a child, abuse can also mean “mental injury,” “neglect,” or “sexual abuse”. A “mental injury” is defined as the observable, identifiable, and substantial impairment of a child’s mental or psychological ability to function. “Neglect” means the leaving of a child unattended or other failure to give proper care and attention to a child by any parent or other person who has permanent or temporary care or custody or responsibility for supervision of the child under circumstances that indicate (1) that the child’s health or welfare is harmed or placed at substantial risk of harm; or (2) mental injury to the child or at substantial risk of mental injury. “Sexual abuse” means sexual molestation and exploitation and includes incest, rape, sexual offense in any degree, sodomy, and unnatural or perverted sexual practices. These terms can be found in Maryland Code, Family Law Article, §5-701 (q), (r), and (w).
Because the statute is “preventative, protective, and remedial” in nature, the courts have a great deal of discretion in fashioning protective orders for the benefit of the abused. A protective order however is not a criminal finding.
If a person (male or female) feels that he or she (or a child) is the victim of abuse, he or she can begin the process by filing a Petition for Relief with the court, or with the commissioner, if the courts are closed. The person who files the petition is called the petitioner. The person against whom the petition is filed is called the respondent. The petitioner, when brought before the judge or commissioner will be asked what has happened to cause them to file the petition. If the petitioner establishes that he or she (or a child) has in fact been abused, an interim protective order can be issued (if brought before a commissioner) or a temporary protective order can be issued (if brought before a judge). Those temporary orders will then be served upon the respondent. The temporary orders can contain many different forms of relief, including an order commanding the respondent to vacate the home until further order of the court.
Usually, within seven (7) days of the temporary protective order being issued there is a final hearing. At this hearing, the petitioner and respondent appear, along with their attorneys and witnesses, for the purpose of determining whether the petitioner has, in fact, proven to the court by a preponderance of the evidence, that respondent has abused the petitioner (or a child) as that term is defined in the statute.
This is a serious matter, and both parties should have an attorney at every stage of the case. Typically, the petitioner does not get an attorney when they apply for the temporary order, but an attorney can also be helpful at that stage.
If the court issues a final protective order, it can be in effect for up to one year and can have far-reaching effects on the entire family unit. The courts have the power to order the respondent to:
- Refrain from any further abuse
- Leave the family home
- Get counseling
- Pay emergency family payments
- Refrain from contacting the petitioner and/or children
- Remain away from the petitioner’s employment and the children’s schools
- Surrender all firearms
The court can also award temporary custody of the children to the petitioner, determine visitation, and grant the petitioner temporary use of the family home and automobile. The courts, however, in the context of a protective order hearing, can only incarcerate a respondent if he or she subsequently violates an order.
The Domestic Violence Laws Are Not Designed to Bypass Divorce Proceedings
The domestic violence laws were not established to bypass the laws relating to divorce, custody, and visitation cases. The courts hold the petitioner to their burden of proving by a preponderence of the evidence that abuse has actually occurred as it is defined in the statute (see the definitions above). Many people, however, try to abuse the intent of the domestic violence statute (preventative, protective, remedial) by fabricating or exaggerating incidents of abuse in order to get (among other things) their spouse out of the house, temporary custody, and temporary child support. The courts are always mindful of these motives and screen each case carefully.
If you are the victim of abuse or are the person accused of committing abuse, it is important that you consult with an attorney immediately. At the Law & Mediation Offices of Kirk Seaman, LLC, our attorneys are experienced in handling domestic violence cases. Call our main number, 410-876-6000, anytime. An attorney is waiting to discuss your case.
Call us today for aggressive representation!