Recently in Domestic Violence Category

March 15, 2011

Divorcing Party May Seek Damages For Tortious Conduct By Spouse

The abrogation of inter spousal immunity in Bozman vs. Bozman, has opened up a new set of issues for Maryland Divorce Lawyers and their clients. A party to a divorce, who is also the victim of tortious conduct, may be unable to obtain an adequate remedy under Maryland's laws governing the dispensation of justice in divorce proceedings. Such a party may consider seeking a remedy based on a civil cause of action. In such a dispute, either party would have the right to a trial by jury. A spouse who is the victim of a tort would seek both equitable relief within the context of laws regulating divorce and a judgment in a civil cause of action.

A prior posting discusses claims brought by a pro se lawyer that were soundly rebuffed in Lasater v. Guttman. This is not an invitation to the establishment of new causes of action peculiar to the institution of marriage. However, some well established torts need to be on the check list of Maryland Divorce Lawyers and their clients. Much but not all of the conduct under the definition of domestic violence would form the basis for a civil cause of action. A cause of action for negligent transmission of a sexually transmitted disease was recognized by the Maryland Court of Appeals in B.K. v. N.N.

As tort lawyers know, not every cause of action is worth pursuing. Maryland Divorce Lawyers and their clients will have to run a cost benefit analysis in such circumstances and keep an eye on the limitations period.

November 4, 2010

Protecting Privacy in Domestic Violence and Peace Order Cases

With the advent of almost universal access to the internet, domestic violence and peace order cases are readily accessed using the Maryland Judiciary Case Search. In the 2010 session of the Maryland General Assembly, advocates on all sides of the issue supported new law that will shield some domestic violence cases from general public access. As a former member of the House of Delegates' Judiciary Committee and a Maryland Family Law attorney who frequently handles domestic violence cases, I applaud this measured change. The new law, that is designed to protect personal privacy in Domestic Violence and Peace order cases, took effect on October 1, 2010.

Shielding precludes access by the general public; it does not preclude access by victim service providers, law enforcement officers, states attorneys, employees of the local department of social services and attorneys who have represented either party in a proceeding.

A respondent who has obtained a dismissal or denial at any stage of the domestic violence case, may file a request that the case records be shielded if certain conditions are met. There must be no prior domestic violence or peace orders that have been issued in any proceeding between the parties. There must be no proceedings currently pending. The respondent must execute a release of any tort claims arising from the alleged incident. The petitioner may object.

If there is an objection, the court will hold a hearing at which the court will determine whether there is "good cause" to shield the records. This requires the court to balance the privacy of and potential for adverse consequences to respondent versus the potential risk of future harm and danger to the petitioner and the community. For a broader understanding of the law relating to domestic violence, please see some of my prior postings on this topic.

January 2, 2010

Domestic Violence: "We both were fighting" defense

A question on the website, Avvo caught my attention as a Maryland Domestic Violence Attorney. "How can my wife be filing a Domestic Violence petition against me, when we were both fighting?" This is not an uncommon situation and can be confusing. If two people in marriage or other relationship covered by the Domestic Violence Laws are "fighting", one, both or none of them may be committing Domestic Violence. One or both parties can file a petition for relief under the act. Relief can only be granted to a party who has filed a petition alleging that the he or she has been a victim of Domestic Violence.

Sometime when both parties have been fighting, a careful comparison is required of what has occurred with the definition of Domestic Violence under Section 4-501 Family Law Article. In the context of the question posed on AVVO, any act that causes serious bodily harm, places a person in fear of imminent serious bodily harm or that constitutes assault under the criminal code can constitute Domestic Violence.

Let me offer two simple rules of thumb. As your grandmother told you, "two wrongs don't make a right." In other words, the fact that one person is a victim of Domestic Violence does not mean that that same person did not also commit Domestic Violence. The second is that "size [sometimes] matters." If the parties in a fight consist of a healthy 200 pound male and a 97 pound female, this may (but not necessarily) be significant on the issue of who was and who was not "in fear of imminent serious bodily harm". For an overview of Domestic Violence proceedings you may review my prior post on the subject.

December 9, 2009

Corporal Punishment Issues Arise in Custody and Domestic Violence Cases

Maryland Divorce and Custody Attorneys know that divorcing couples often disagree on parenting issues. This may include disagreement over corporal punishment. The issue of corporal punishment can also arise in situation where the parents are in agreement. The use of corporal punishment can become (i) a criminal charge of child abuse under Section 3-601 of Criminal Law Article, (ii) a child abuse investigation and finding by the Department of Social Services under Section 5-701 of Family Law Article (subject to appeal to the Office of Administrative Hearings), (iii) a domestic violence case under Section 4-501 of the Family Law Article and (iv) an issue in a custody or visitation dispute.

In each of these types of proceedings, a parent's conduct can have important consequences to his or her parental rights. It is important for parents who might be involved in any of these types of litigation to understand the basic concepts of child abuse and be able to discuss the issue with their Family Law Attorney.

Section 4-501 Family Law Article adopts the common law principle permitting "reasonable punishment including reasonable corporal punishment, in light of the age and condition of the child performed by a parent or step-parent of a child." However, when corporal punishment causes injury to the child, even if unintended, it is likely that the conduct of the parent will be closely scrutinized.

There are two Maryland appeals court opinions that offer guidance in such cases. The first is Charles County Department of Social Services vs. Vann in which the Department's finding of child abuse was upheld. In this case, a six year old was trying to evade punishment by his father who sought to strike him on the buttocks with a belt. Father had swung a rather large belt buckle at his son who attempted to evade the blows by twisting, turning and grabbing the belt. The boy's back was injured. The Court found that it was reckless to have swung the belt buckle at the child. His evasive response meant that the blow could have landed anywhere on his body. Indeed the injuries could have been far more severe.

In Department of Human Resources vs. Howard, the Court of Special Appeals, the court reversed a finding by the Department based on inadvertent injuries to 13 year old boy's eye. Mother intended to hit the child in the back of the head with her knuckles. He surprised her by turning his head towards her so that she struck him in the eye. Mother did not act with intent to harm the boy or with recklessness towards his safety or welfare.

November 10, 2009

A Domestic Violence Case Can Move Quickly and Have Profound Consequences

As a Maryland lawyer experienced in Domestic Violence cases and a former member of the Maryland General Assembly, I have witnessed the strengthening of our state's Domestic Violence laws. The District Courts are open 24 hours a day to accept petitions for protective orders and conduct ex parte hearings.

At an ex parte hearing, if a court finds reasonable grounds to believe that abuse of a person eligible for relief under Section 4-501 Family Law Article has occurred, the Court may enter a temporary order for seven days that can be extended up to six months in those instances in which service of process on respondent is delayed. Such an order may prohibit the respondent from abusing, threatening to abuse, contacting, attempting to contact or harassing the petitioner; prohibit the defendant from entering the petitioner's residence and award custody of any minor children.This temporary order is intended to protect the petitioner until a hearing can be held on a final protective order.

At a hearing on the final protective order, both parties are allowed to present evidence. A permanent order can only be granted if there is clear and convincing evidence that abuse as defined by Section 4-501 Family Law Article has occurred. A permanent order in most instances is limited to one year. It can award the same relief enumerated above for the temporary order plus family maintenance that can be enforced by withholding of salary. The court can also make provisions for visitation subject to consideration of the welfare of the child and the safety of the protected party.

The outcome of a Domestic Violence proceeding can be profound. Every effort should be made to avoid being either a victim or an accused. While the parties may be represented by an attorney, no one is required to be represented in these cases. Pro bono assistance may be available. However, the outcome of such a dispute can have profound effects on enumerable matters between the parties. An experienced family law attorney can provide advice on the possible impact on other issues such as child custody, child or spousal support, possession of the family home or property, disposition of property and other matters that arise in a separation or divorce. Domestic Violence cases typically move quickly. Time is of the essence in conferring with a lawyer.

October 13, 2009

Domestic Violence Laws Continue to Strenghten

In recent years, my former colleagues in the Maryland General Assembly have continued to strengthen laws to protect against Domestic Violence. On October 1, 2009, a new law went into effect. It requires the court to order any person who commits an act of Domestic Violence or voluntarily consents to a protective order without a finding that an act of abuse has occurred, to surrender any firearms.

Before a protective order can be granted in a Domestic Violence case, there are a series of issues that must be analyzed. First, the parties must have a relationship that makes one them a "a person eligible for relief". Next an act or acts must have been committed that meet the statutory definition of abuse . Finally the act or acts must be proven, initially in a preliminary hearing by a preponderance of the evidence and then in a final hearing by "clear and convincing evidence".

Domestic Violence can have very serious consequences. The best solution is to avoid its occurrence. Not everyone can afford an attorney and volunteer assistance is often available. If possible however, the assistance of an experienced family law attorney should be considered. This advice would also include an evaluation of how Domestic Violence might impact other issues such as child custody, child support, possession of the family home or property and other matters that arise in a separation or divorce. Situations involving Domestic Violence evolve quickly and therefore time is of the essence in obtaining the assistance of a lawyer.