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Family Violence

Family Violence. Part 2. February 3, 2004. Review: Family Violence. Historical Conception of Marriage/Coverture (H+W=H) and Public Policy/Const. Right of Family Privacy: Led to: 1) Non-Interference in Intact Families 2) Marital Rape does not equal Crime

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Family Violence

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  1. Family Violence Part 2 February 3, 2004

  2. Review: Family Violence Historical Conception of Marriage/Coverture (H+W=H) and Public Policy/Const. Right of Family Privacy: Led to: 1) Non-Interference in Intact Families 2) Marital Rape does not equal Crime 3) Spousal Evidentiary Privilege 4) Interspousal Tort Immunity Over last 30 years: substantial erosion of all of the above

  3. Civil Protection Orders Emergency orders available in all 50 states/D.C. that allow victims of domestic violence to obtain a range of relief including: • temporary injunctive relief (eviction of abuser from home and a prohibition against continued abuse) • temporary custody • financial relief • counseling orders

  4. Usually two stage procedure 1) ex parte – same day/one side present 2) full hearing: notice to respondent and opportunity to be heard Note: MD – interim orders

  5. Variation among states in: 1) scope of coverage 2) scope of remedies 3) length of time order in effect

  6. Problem 1 – Abby & MarkTwo Elements to Meet Threshold Requirements • Is Abby a person eligible for relief? Cohabitant – 4-501(d) • Is the abuse a covered act? Assault in any degree – 4-501(b)(iii)

  7. If Abby also argues that Mark’s behavior placed her “in fear of imminent serious bodily harm” (4-501 b(ii)), what standard should the court use in evaluating the claim? Katsenelenbogen v. Katsenelenbogen, (Md.Ct. of App., 775 A.2d 1249 (2001) “individualized objective” standard: “reasonable petitioner in that litigant’s shoes.”

  8. What relief is Abby eligible for in a protection order? • Injunctive Relief (refrain from abuse/stay away)?: 4-506(d)(1)-(3), (5)-(6) • Vacate home/use & poss of home?: 4-506(d)(4)/Factors: 4-506(e) • Custody & visitation? 4-506(d)(7)-(8) • EFM? 4-506(d)(9) • Use & poss of vehicle? 4-506(d)(10) • Counseling? 4-506(d)(11) • Firearm removal? 4-506(d)(12)

  9. Relief Available to Abby: • No contact/stay away orders • Eligible for use & poss of home but unlikely • Counseling

  10. What happens if Mark is not served during the 7 day period of the ex parte? 4-505(b) – service of ex parte by law enforcement 4-505(c) – extension 4-506(f) – notice before or appearance at cpo hearing

  11. Problem 2 – Tonya and Terrence 1. Is Tonya a person eligible for relief? 4-501(l)(1) – former spouse • Was there abuse? 4-501(b) (ii) – act placing PEFR in fear of imminent bodily harm or 4-501(b)(iii) – assault in any degree

  12. What relief is Tonya eligible for in a protection order? • Injunctive Relief (refrain from abuse/stay away?): 4-506(d)(1)-(3), (5)-(6) • Vacate home/use & poss of home?: 4-506(d)(4)/Factors: 4-506(e) • Custody & visitation? 4-506(d)(7)-(8) • EFM? 4-506(d)(9) • Use & poss of vehicle? 4-506(d)(10) • Counseling? 4-506(d)(11) • Firearm removal? 4-506(d)(12)

  13. Relief Available to Tonya: • No contact/stay away orders • CPO might modify cust., visitation, and financial support but, unless emerg change needed, would send back to divorce case. • Counseling • Firearm removal, if applicable

  14. 5. Is Court permitted to hear evidence of past acts of abuse? Yes – 4-504(b)(ii)(requiring inclusion of incidents of “previous injury resulting from abuse by the respondent” in petitions for protection order) Coburn v. Coburn, 674 A.2d 951 (Md. Ct. of App. 1996).

  15. What relief, if any, is available to Tonya’s mother? Is she a PEFR? 4-501(l)(3) – no longer related to respondent 4-501(l)(4) – parent of PEFR living with PEFR Injunctive Relief But needs to file her own petition?

  16. Problem 3 – Steve and Janet • Can the court grant mutual orders of protection? 1) 4-506(c)(2) – Steve hasn’t filed petition 2) 4-506(c)(3)(ii)(2) – Janet: self- defense

  17. What remedies are available under the statute to make visitation orders safe? 4-506(d)(8) – visitation can be supervised or restricted as to time, place and duration

  18. How do you change terms of emergency family maintenance order? 1) 4-507(a) – Motion to modify (substantial change in circumstances?) 2) 4-507(b) – Appeal available (but ct. has wide discretion on amt. of EFM 4-501(f); 4-506(d)(9))

  19. What happens if Steve doesn’t pay EFM? 1) wage withholding 4-506(d)(9) 2) crim. pros.; contempt 4-508(a)&(b)

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