Petition to Vacate or Modify Previous Order by rst60617

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									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
 3) Spousal Evidentiary Privilege
 4) Interspousal Tort Immunity

 Over last 30 years: substantial erosion of all of the
 above
           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
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
Variation among states in:
     1) scope of coverage
     2) scope of remedies
     3) length of time order in effect
   Problem 1 – Abby & Mark

   Two Elements to Meet Threshold
           Requirements
1. Is Abby a person eligible for relief?
   Cohabitant – 4-501(d)

2. Is the abuse a covered act?
   Assault in any degree – 4-501(b)(iii)
3. 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.”
5. 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)
    Relief Available to Abby:
1) No contact/stay away orders
2) Eligible for use & poss of home but
   unlikely
3) Counseling
6. 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
 Problem 2 – Tonya and Terrence
1. Is Tonya a person eligible for relief?

      4-501(l)(1) – former spouse

2. 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
3. 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)
    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
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).
4. 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?
   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
• 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
• 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))
• 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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