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Barbara R. Trader, P.A.
 

Domestic Violence

Domestic violence is an increasing problem in the United States and in Maryland. A person who is a victim of domestic abuse has two avenues in which to seek relief through the judicial system. A victim may file criminal charges and/or civil charges against the abuser.

Because assault and batter are crimes in Maryland, a victim of domestic violence may contact the police to have criminal charges filed against the abuser. If the police do not arrest the abuser or file criminal charges, a victim may go directly to the District Court commissioner to press criminal charges. In a criminal action, it is not necessary for the victim to obtain a lawyer. Since the abuse is a crime against the people of Maryland, the criminal charges will be prosecuted by the assistant state's attorney in the county in which the charges are brought. In most cases, the victim's testimony will be necessary in order for the state's attorney to obtain a conviction. The victim must be prepared to cooperate with the state's attorney to be a witness in the case.

The second way that an abuse victim may obtain relief is by filing a civil action against the abuser, called an Ex Parte Petition for Protection. In order for a victim to qualify for protection under the Maryland statute, a victim must be a "person eligible for relief." This means that a victim must be a current or former spouse of the abuser, a cohabitant of the abuser, a person related to the abuser by blood marriage or adoption, a parent, step-parent, child, or stepchild who has resided with the abuser or victim for at least 90 days within one year before the filing of the petition, a vulnerable adult, or an individual who has a child in common with the abuser.

The victim must go to either District Court or the Circuit Court in the county in which the abuse occurred, and fill out and file an application for an Ex Parte Order for Protection. The victim must then speak to a judge to explain the circumstances of the abuse. If the judge is satisfied that the abuse occurred, the judge will issue an Ex Parte Order. The Ex Parte Order gives the victim protection from the abuser for a temporary period of time, usually up to 7 days. The Ex Parte Order can order the abuser out of the house, order the abuser to refrain from contacting or harassing the victim, and award temporary custody of the children to the victim.

The Ex Parte Order expires at the end of the 7-day period, but before it expires another hearing is held. The second hearing is called a Protective Order Hearing. At this hearing, if the judge is satisfied by clear and convincing evidence that the abuse occurred, a victim may obtain a Protective Order against the abuser which will be effect for up to one year. At the Protective Order hearing, the alleged abuser has the right to be present and present his or her side of the case. Both parties should be prepared to put on witnesses and present evidence. Although it is not absolutely necessary for a victim or an alleged abuser to be represented by an attorney in a Protective Order hearing, most parties find it to be extremely helpful to have a lawyer at this state of the proceeding.

If the Protective Order is granted, the victim may obtain relief for up to 12 months. The Protective Order may also contain any or all of the following provisions: order the abuser to refrain abusing or threatening to abuse the victim or from contacting or harassing the victim; order the abuser out of the home; order temporary use and possession of the home and any jointly titled vehicle to the victim; award temporary custody of the children to the victim; order the abuse to stay away from the victim's place of employment, the child's school or day care provider; award emergency family maintenance to the victim; order the abuser to participate in counseling; and order the abuser to surrender all firearms to law enforcement for the duration of the Order.

For more information about domestic Violence and a list of agencies which can provide resources and assistance to abuse victims, click on http://www.dhr.state.md.us./mcw and go to publications.


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