Going through a contentious divorce and custody battle can be an extremely exhausting and overwhelming process for the parents involved. When there is an element of domestic violence in the mix, this adds stress and complication to the dynamics. If you have concerns about your immediate safety and/or the immediate safety of your children, there are steps you can take while going through a divorce and custody dispute.
What is a Protective Order?
In Maryland, to get a Protective Order you must meet the statutory qualifications. You are eligible to get a Protective Order if you fit into one of these categories:
- Current or former spouse of the alleged abuser (the “respondent”)
- Had a sexual relationship with the respondent
- Related to the respondent by blood, marriage, or adoption
- Parent, step-parent, child, or step-child of the respondent
- Vulnerable adult, i.e person who cannot physically or mentally meet daily needs
- Child in common with respondent
- Allege that respondent committed or attempted to commit rape or sexual offense within 6 months prior to filing
If you are a person eligible for relief, you must demonstrate that the respondent has committed an act of abuse against you or your child. Abuse can include, but is not limited to: a) assault, b) threats to do bodily harm; c) destruction of property; d) cause serious bodily harm; stalking
What Type of Protection is Offered in a Protective Order?
At a hearing on the final protective order hearing, the person who filed the petition for protective order (the “petitioner”) has the burden of proof. The petitioner must establish by clear and convincing evidence that the alleged abuse occurred.
If the Judge finds by clear and convincing evidence that the alleged abuse occurred or there is consent to the final protective order, then the judge will grant the petition and enter an order on behalf of the person eligible for relief.
Maryland Rule 4-509 states that in the final protective order, the Judge can include any of the following relief to the petitioner:
- Respondent shall not abuse, threaten to abuse, or harass any person eligible for relief
- Respondent shall not contact, attempt to contact, or harass any person eligible for relief
- Respondent shall not enter the residence of any person eligible for relief
- Respondent shall vacate the home
- Respondent shall stay away from the place of employment, school, temporary residence of person eligible for relief
- Respondent shall stay away from a childcare provider
- Temporary custody arrangement can be ordered
- Emergency family maintenance can be awarded
- Respondent to participate in professionally supervised counseling or a domestic violence program
Is Custody a Part of a Protective Order?
Yes, pursuant to Maryland law, a Judge can order a temporary custody arrangement to be in place during the pendency of the final protective order. The custody arrangement awarded in connection with the final protective order is not “permanent” and long-term custody arrangements, to be in place beyond the period the protective order is in place, should be handled through the custody case.
Impact on Custody Case?
In the custody case the standard that the court looks to when determining the custody arrangement is the “best interest of the child.” The best interest of the child is a series of considerations that the court looks to collectively. If there is or has been a protective order in place against one of the parents, the order and underlying allegations as it pertains to the child and/or other parent will be among the factors weighed by the court. The court takes allegations of domestic violence seriously and considers such allegations within lens of the “best interest of the child.”
Other “best interest” factors include, but are not limited to:
- Primary caregiver
- Fitness of the parents
- Child preference
- Financial situation of the parties
- Age, health, and gender of the child
- Residence of the parents and feasibility of visitation
- History of access between the parties
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