facebook

Better Late than Never?

Better Late than Never?
Family

Maryland Was the 50th State to Step in to Protect Victims of Domestic Violence

There are really two ways to look at this: one is that the State of Maryland lowered its burden of proof for victims of domestic violence in order to help them obtain Final Protective Orders. The other is that the State of Maryland finally lowered its burden of proof for victims of domestic violence in order to help them obtain Final Protective Orders.

As a divorce professional living in this 50th state myself, I set out to speak with my colleagues to find out how this new burden of proof has affected them both in and out of the courtroom. I am stunned, if not disheartened, to learn that many of them are not aware that the bill even passed. In what was supposed to be a one day review of this change, I find myself spending several weeks getting to the bottom of this. I want to find out if the lower standard is even helping domestic violence victims? And I need to look at what is bothering me the most: how do I get the word out for those who still do not know?

I haven’t been a journalist in many years. Over twenty to be exact. But I dust off my old skills and start calling the biggest sources I can find in order to get this to the media now. I start with the American Bar Association and they are instrumental in getting me directly to the people who can tell this story.

In one way it is a victory for anyone entering the court system after October of 2014, which is when Maryland’s then Governor Martin O’Malley signed the bill changing the burden of proof needed to obtain a Final Protective Order from “clear and convincing evidence,” to the new standard “a preponderance of the evidence.” (After obtaining a Temporary Restraining Order the victim then comes back approximately seven days later to ask for a Final Protective Order which can last as long one year in Maryland).

According to Gwendolyn Tate, Director of Legal Services at SARC (The Sexual Assault/Spouse Abuse Resource Center) in Maryland, “I have heard, in at least two cases the judge say that ‘had the standard been clear and convincing evidence your client would not have gotten this (Final) Protective Order.” As an attorney who regularly helps victims of domestic violence obtain Final Protective Orders, I ask what she has seen since the standard changed, “We don't have to prove 'clear and convincing' anymore…I find mentioning this to the other attorney has proved useful in negotiations."

In another way, it is hard not to look back at those who came to the Maryland Court System before October of 2014 and were denied protection because they were held to a standard that was, according to Tate, “higher than that needed to prove abuse during a divorce trial.” Quite often victims spend a great deal of time gathering their courage and running to the protection of our court system only to learn that their request for protection has been denied. These victims often return to their homes, without protection from their abusers, and are injured further.

According to Court Watch Montgomery, an innovative program that gathers data in 1,000 domestic violence hearings in Montgomery County Maryland each year, then publishes findings and recommendations back to the court system in order to help victims of domestic violence gain better protection, “…domestic violence victims greatly increase their risk of injury when they take steps toward independence. Abusers who are losing control often lash out.”

So looking forward at the new burden of proof, what is the best plan for victims of domestic violence? “Go get that Temporary (Restraining Order) relief and then we'll have seven days to bolster your case,” urges Tate, “That's seven days of protection while we put in other measures of safety for your protection."

Does it matter that Maryland was the 50th state? For those who are seeking protection now and were after October of 2014 I would say I have learned that it’s a “better late than never,” type of situation. But for those who went to the courts before October of 2014 and sought the help and protection that they needed and were denied? Well, it’s a bittersweet victory. They are happy for the ones who will be protected, sad for the ones who were not. How do I know? I was one of them. 

To learn more about the burden of proof required for orders of protection in your state visit:

http://www.americanbar.org/content/dam/aba/migrated/domviol/pdfs/Standar...

Author
Expert