And now the final protective order issue

gavel2 1 Maryland law provides for temporary protective or peace orders in an effort to prevent domestic violence, which may ultimately be followed by a request for a final protective order lasting for a year. The appellate courts have said that when fashioning relief in a domestic violence case, the court “is to do what is reasonably necessary no more and no less-to assure the safety and well-being of those entitled to relief.” How the Courts go about deciding such difficult cases is illustrated by a recent unreported opinion from Maryland’s Court of Special Appeals called Gali v. Gali.

The opinion indicates that the parties were married with two children. Each spouse had obtained temporary protective orders against the other. They then sought a final protective order against each other, and the Circuit Court judge heard testimony from each spouse and their various witnesses. The judge then denied the husband’s request for relief, granted a final protective order to the wife that she not be abused, threatened or harassed by the husband, and ordered other relief including awarding custody of the children to the wife with visitation to the husband, and a monetary award for emergency family maintenance.
On appeal, in which the wife did not file a brief, the appellate court reviewed the law governing final protective orders as set forth in the Maryland family law article. It noted that the party seeking a protective order has the burden of showing by a preponderance of evidence that abuse has occurred. The fact finding by the trial judge will not be reversed on appeal unless it is clearly in error, with the appellate court deferring to the trial court’s determination of credibility of witnesses.
Where both sides seek a final protective order, the law allows the court to order mutual protective orders. However, mutual orders can only be entered where the trial judge makes detailed findings of fact that both parties acted primarily as aggressors, and neither acted primarily in self defense.
In this case, the Court found that the trial court did not abuse its discretion in determining that the wife’s evidence was more credible, including that most of the husband’s witnesses worked for him or his family, and that each episode when the police were called they arrested the husband. Without proving that the wife was the aggressor, the Court affirmed the denial of a mutual protective order.

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.

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