READ ABOUT: Understanding the Protection from Abuse Process

By Rudman Winchell Attorney

One of the most vital decisions courts make is whether to issue protection from abuse orders. Such orders can be essential to protecting plaintiffs and their families, however, the process is susceptible to misuse and orders can have long-standing implications.

As we see in occasional, tragic headlines, court orders prohibiting someone from having contact with another person are not effective deterrents to those truly mentally or emotionally troubled. However, the issuance of a protection order can allow the heat of a strained relationship to cool and provide time for sound judgment to overcome irrational thoughts that can erupt in domestic violence. Sometimes, though, plaintiffs misuse the protection process as a means of acquiring an instant, albeit temporary, divorce in which the plaintiff is given exclusive possession of the home, sole custody of the children, and a child support order, among other things.

Whether you need protection from an abusive partner or you are the recipient of a temporary order that removed you from your home and family, you need to understand your rights and make informed decisions about how to proceed.

When a complaint for protection from abuse is filed, a judge is called upon to decide whether a temporary order should issue immediately, before the defendant has a chance to respond.
If a temporary order is issued, the defendant will be served a copy by local law enforcement and will be prohibited from having any contact with the plaintiff. If a temporary order is denied, the plaintiff still has an opportunity to present a case at a hearing, however, the defendant has the right to attend and present a defense. The best opportunity to obtain a temporary order comes with the initial complaint when the court only has one side of the story.

When a temporary order is issued the court must promptly schedule the matter for a hearing at which both sides have the right to present their case. What happens at the hearing can have a profound impact and should not be taken lightly. There are essentially three scenarios that can play out: first, the plaintiff can decide there is no longer a need for protection and the court will dismiss the complaint; second, the parties can agree to have a protection order issued that prohibits the defendant from having contact with the plaintiff (and potentially others) but without the court indicating the defendant did anything wrong; finally, if the parties cannot agree, the court will hold a hearing where both sides present evidence and at the conclusion the court will decide whether the defendant abused the plaintiff as defined by Maine law. If so, the court will issue what is referred to as a permanent protection order that will remain in place for two years.

Each of these scenarios has positive and negative implications that need to be considered. If the complaint is dismissed and the temporary order is dissolved the parties can resume contact and, for example, once again communicate and co-parent their children. However, there is no longer any protection afforded the plaintiff, which is sometimes essential. Incidentally, this will be the result if the plaintiff fails to appear for the hearing.

If an order for protection is issued by agreement of the parties without any findings of abuse, the plaintiff will have the same protection he or she would have gotten after prevailing at trial. The major difference is that because there were no findings of abuse the defendant maintains certain rights. These types of agreements allow parties to craft orders that work best for their individual situations. For example, an order might prohibit a defendant from having contact with the plaintiff but allow contact with the parties’ children, or allow contact, but only in certain places or at certain times. The parties can also agree how long the order will remain in place.

For some here in Maine sports involving firearms are a fundamental part of life and hunting is often a highlight of the year. Issuance of an order without findings will allow a defendant to maintain firearms, which is not the case if an order is issued after a hearing. Thus, a defendant might agree to an order without findings to avoid the risk of losing the right to possess firearms following a hearing.
If a trial is held and the plaintiff is unable to prove abuse through the introduction of admissible evidence, the court will not issue a protection order and any temporary order that was in place will be dissolved, leaving the plaintiff with no protection. For this reason, plaintiffs have an interest in negotiating agreements without findings because they eliminate the uncertainty of trial and give plaintiffs the protection they are seeking.

If a trial is held and an order is issued, the court will have found the defendant abused the plaintiff as defined by Maine law. The definition of abuse, which does not require a defendant ever touch a plaintiff, can be found at http://www.mainelegislature.org/legis/statutes/19-a/title19-Asec4002.html . Having an order issued with findings of abuse not only prohibits the defendant from having contact with the plaintiff, it also impacts other rights of the defendant such as prohibiting the possession of firearms as long as the order remains in place.

Whether the order is issued with or without findings, any violation of an order will almost certainly result in the defendant being charged with criminally. Being found guilty of violating a protection order not only establishes a criminal record for a defendant, it can result in losing the right to own or possess firearms for life.

Although the protection from abuse process may often seem informal, it can have profound repercussions and should be taken seriously at all stages. Regardless of the side on which you find yourself, as with any legal proceeding, it is strongly recommended that you take whatever steps are necessary to fully understand your rights, including contacting a lawyer who can guide you through the process.

Disclaimer


These materials have been prepared by Rudman Winchell for educational purposes only. They should not be considered legal advice. The transmission of this information to you is not intended to create a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should not send any confidential or private information to Rudman Winchell until a formal attorney-client relationship has been established, in writing.