§ 4108. Temporary orders
§ 4109. Hearings
§ 4110. Relief
§ 4108. Temporary orders (see 2(C))
1. Temporary orders. The court may enter temporary orders authorized under subsection 2 that it considers necessary to protect a plaintiff or minor child from abuse, on good cause shown in an ex parte proceeding, which the court shall hear and determine as expeditiously as practicable after the filing of a complaint. Immediate and present danger of abuse to the plaintiff or minor child constitutes good cause. A temporary order remains in effect pending a hearing pursuant to section 4109.
2. Interim relief. The court, in an ex parte proceeding, may enter temporary orders:
A. Concerning the parental rights and responsibilities relating to minor children for whom the parties are responsible;
B. Enjoining the defendant from engaging in the following:
(1) Imposing a restraint upon the person or liberty of the plaintiff;
(2) Threatening, assaulting, molesting, harassing, attacking or otherwise disturbing the peace of the plaintiff;
(3) Entering the family residence or the residence of the plaintiff, including the land immediately surrounding and associated with the residence;
(4) Repeatedly and without reasonable cause:
(a) Following the plaintiff; or
(b) Being at or in the vicinity of the plaintiff's home, school, business or place of employment;
(5) Taking, converting or damaging property in which the plaintiff may have a legal interest;
(6) Having any direct or indirect contact with the plaintiff;
(7) Engaging in the unauthorized dissemination of certain private images as prohibited pursuant to Title 17-A, section 511-A; or
(8) Destroying, transferring or tampering with the plaintiff's passport or other immigration document in the defendant's possession; or
C. Concerning the care, custody or control of any animal owned, possessed, leased, kept or held by either party or a minor child residing in the household and may enjoin the defendant from injuring or threatening to injure any such animal.
3. Temporary orders; possession of dangerous weapons. The court may direct the defendant not to possess a firearm, muzzle-loading firearm, bow, crossbow or other dangerous weapon for the duration of the temporary order if the complaint demonstrates:
A. Abuse that involves a firearm, muzzle-loading firearm, bow, crossbow or other dangerous weapon; or
B. A heightened risk of immediate abuse to the plaintiff or a minor child. In determining whether a heightened risk of immediate abuse is present, the court shall consider, but is not limited to consideration of, whether:
(1) The temporary order of protection is not likely to achieve its purpose in the absence of such a condition;
(2) The defendant has violated orders of protection;
(3) Past or present abuse to a victim resulted in injury;
(4) The abuse occurred in public; and
(5) The abuse includes:
(a) Threats of suicide or homicide;
(b) Killing or threatening to kill any animal owned, possessed, leased, kept or held by either party or a minor child residing in the household;
(c) An escalation of violence;
(d) Stalking behavior or extreme obsession;
(e) Sexual violence;
(f) Excessive alcohol or drug use; and
(g) Abuse against a pregnant victim.
If the court prohibits the defendant from possessing a firearm, muzzle-loading firearm, bow, crossbow or other dangerous weapon in a temporary order and if the defendant moves for dissolution or modification of a temporary order pursuant to subsection 6, the court shall hear and decide the motion as expeditiously as possible and shall issue a written decision on the motion within 24 hours after a hearing on that motion.
If the court prohibits the defendant from possessing a dangerous weapon other than a firearm, muzzle-loading firearm, bow or crossbow in a temporary order, the court shall specify the type of weapon the defendant is prohibited from possessing.
If the court prohibits the defendant from possessing a firearm, muzzle-loading firearm, bow, crossbow or other dangerous weapon in a temporary order, the court shall direct the defendant to relinquish, within 24 hours after service of the temporary order on the defendant or such earlier time as the court specifies in the temporary order, all firearms, muzzle-loading firearms, bows, crossbows and specified dangerous weapons in the possession of the defendant to a law enforcement officer or other individual for the duration of the temporary order. If the weapons are relinquished to an individual other than a law enforcement officer, the defendant must file, within 24 hours after such relinquishment, with the court or local law enforcement agency designated in the temporary order a written statement that contains the name and address of the individual holding the weapons and a description of all weapons held by that individual. The court may subsequently issue a search warrant authorizing a law enforcement officer to seize any firearms, muzzle-loading firearms, bows, crossbows and other dangerous weapons at any location if there is probable cause to believe such firearms, muzzle-loading firearms, bows, crossbows or dangerous weapons have not been relinquished by the defendant.
4. Emergency relief. Emergency relief is available as follows.
A. When there is no judge available in the District Court having venue or the District Court courthouse is closed and no other provision can be made for the shelter of an abused family or household member or minor child, a complaint may be presented to another District Court Judge or Superior Court Justice. Upon a showing of good cause, as described in subsection 1, the court may enter temporary orders authorized under this section that it considers necessary to protect the plaintiff or minor child from abuse.
B. If a complaint is presented under this subsection, that complaint and any temporary order issued pursuant to it must be forwarded immediately to the clerk of the District Court having venue for filing.
C. A temporary order under this subsection remains in effect pending a hearing pursuant to section 4109.
5. Denial of relief. Before a request for temporary, emergency or interim relief is denied, the judge shall:
A. Allow the plaintiff the opportunity to be heard in person to support the complaint. The plaintiff may be accompanied by a person of the plaintiff's choice; and
B. Advise the plaintiff of reasons for the denial.
6. Dissolution or modification. Notwithstanding any provision of law to the contrary, upon 2 days' notice to the plaintiff or upon such shorter notice as the court may order, a person who is subject to a temporary order may appear and move the dissolution or modification of the temporary order and, in that event, the court shall proceed to hear and determine the motion as expeditiously as the ends of justice require. At that hearing, the plaintiff has the burden of justifying a finding in the temporary order that the defendant has challenged by affidavit. This subsection may not be construed to abolish or limit any means otherwise available by law for obtaining dissolution, modification or discharge of a temporary order.
7. Extension. If a hearing on the complaint is continued, the court may make or extend temporary orders it considers necessary. Notwithstanding any provision of this section to the contrary, if a final protection order is issued pursuant to section 4110, the temporary protection order issued pursuant to this section remains in effect pending service of the final protection order.
Credits
2021, c. 647, § A-3, eff. Jan. 1, 2023.
§ 4109. Hearings
1. Full hearing. Within 21 days of the filing of a complaint, a hearing must be held at which the plaintiff must prove the allegation of abuse or conduct specified in section 4103 by a preponderance of the evidence. If a request for temporary, emergency or interim relief is denied, the hearing must be held as soon as practicable within the 21-day period. Nothing in this section limits the court's discretion to continue the final hearing upon the court's own motion or upon the motion of either party.
2. Self-defense. The right to relief under this chapter is not affected by the plaintiff's use of reasonable force in response to abuse by the defendant.
3. Intoxication. Voluntary intoxication is not a defense to an action under this chapter.
Credits
2021, c. 647, § A-3, eff. Jan. 1, 2023.
§ 4110. Relief (see section 3(H))
1. Final protection order. The court, after a hearing or opportunity for hearing and upon finding that the defendant has committed the abuse or conduct specified in section 4103, may grant a final protection order to bring about the cessation of the abuse or alleged conduct. The court may enter a finding that the defendant represents a credible threat to the physical safety of the plaintiff or a minor child residing in the household. The court may enter a finding of economic abuse.
2. Final protection order by consent. The court may approve a final protection order by consent if all parties agree to the terms, including whether an order under this section includes findings by the court.
3. Relief. Relief granted under this section may include:
A. Directing the defendant not to threaten, assault, molest, harass, attack or otherwise abuse the plaintiff and any minor children residing in the household;
B. Directing the defendant not to possess a firearm, muzzle-loading firearm, bow, crossbow or other dangerous weapon for the duration of the order;
C. Prohibiting the defendant from the use, attempted use or threatened use of physical force that would reasonably be expected to cause bodily injury against the plaintiff or a minor child residing in the household;
D. Directing the defendant not to go upon the premises of the plaintiff's residence;
E. Directing the defendant to refrain from repeatedly and without reasonable cause:
(1) Following the plaintiff;
(2) Being at or in the vicinity of the plaintiff's home, school, business or place of employment; or
(3) Engaging in conduct defined as stalking in Title 17-A, section 210-A;
F. Directing the defendant not to have any direct or indirect contact with the plaintiff, including via social media;
G. When the mutual residence or household of the parties is jointly owned or jointly leased or when one party has a duty to support the other or their minor children living in the residence or household and that party is the sole owner or lessee:
(1) Granting or restoring possession of the residence or household to one party, excluding the other; or
(2) A consent agreement, allowing the party with the duty to support to provide suitable alternate housing;
H. Directing the defendant not to injure or threaten to injure any animal owned, possessed, leased, kept or held by either party or a minor child residing in the household;
I. Either awarding some or all temporary parental rights and responsibilities with regard to minor children or awarding temporary rights of contact with regard to minor children, or both, under such conditions that the court finds in the best interest of the child pursuant to section 1653, subsections 3 to 6-B. The court's award of parental rights and responsibilities or rights of contact is not binding in any separate action involving an award of parental rights and responsibilities pursuant to chapter 55 or in a similar action brought in another jurisdiction exercising child custody jurisdiction in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act;
J. With respect to unauthorized dissemination of certain private images as described in Title 17-A, section 511-A, entering any orders determined necessary or appropriate in the discretion of the court, including but not limited to:
(1) Prohibiting the defendant from disseminating the private images;
(2) Ordering the defendant to remove, destroy or return or to direct the removal, destruction or return of the private images; or
(3) Ordering the defendant to pay costs associated with removal, destruction or return of the private images;
K. Ordering a division of the personal property and household goods and furnishings of the parties and placing any protective orders considered appropriate by the court, including an order to refrain from taking, converting or damaging property in which the plaintiff has a legal interest;
L. Ordering the termination of a life insurance policy or rider under that policy owned by the defendant if the plaintiff is the insured life under the policy or rider. Upon issuance, a copy of the order must be sent to the insurer that issued the policy;
M. Requiring the defendant to attend a certified domestic violence intervention program, to receive counseling from a social worker, family service agency, mental health center, psychiatrist or to participate in any other guidance service that the court considers appropriate. The court may not order and the State may not pay for the defendant to attend a certified domestic violence intervention program unless the program is certified under section 4116;
N. Ordering the payment of temporary support for a dependent party when the defendant has a legal obligation to support that dependent party;
O. Ordering the payment of temporary support:
(1) For a child in the dependent party's custody in accordance with chapter 63, when the defendant has a legal obligation to support that child; or
(2) To the State as provided in chapters 63, 65 and 67.
In all proceedings under this chapter, the court shall apply the child support guidelines in chapter 63 using the information the plaintiff is able to provide the court. Failure of a party to file an income affidavit may not unnecessarily delay a proceeding and does not preclude the issuance of an order for child support, except that the court shall require the plaintiff to complete and file an income affidavit at a final hearing involving child support even if the defendant does not appear for the hearing;
P. Ordering payment of monetary relief to the plaintiff for losses suffered as a result of the defendant's conduct. Monetary relief includes but is not limited to loss of earnings or support, reasonable expenses incurred for personal injuries or property damage, transitional living expenses and reasonable moving expenses. Upon the motion of either party, for sufficient cause, the court may set a later hearing on the issue of the amount of monetary relief, if any, to be awarded. Nothing in this paragraph may be construed to limit the court's discretion to enter any of the other available relief under this chapter. Nothing in this paragraph may be construed to preclude a plaintiff from seeking monetary relief through other actions as permissible by law;
Q. Ordering the defendant to pay court costs or reasonable attorney's fees;
R. Ordering the plaintiff to pay court costs or reasonable attorney's fees, or both, only if a judgment is entered against the plaintiff after a hearing in which both the plaintiff and the defendant are present and the court finds that the complaint is frivolous;
S. Directing the care, custody or control of any animal owned, possessed, leased, kept or held by either party or a minor child residing in the household;
T. With regard to conduct described as aggravated sex trafficking or sex trafficking as described in Title 17-A, section 852 or 853, respectively, entering any other orders determined necessary or appropriate in the discretion of the court, including, but not limited to, requiring the defendant to pay economic damages related to the return or restoration of the plaintiff's passport or other immigration document and any debts of the plaintiff arising from the trafficking relationship; or
U. Entering any other orders determined necessary or appropriate in the discretion of the court.
4. No possession of firearm, muzzle-loading firearm, bow or crossbow or dangerous weapons for duration of final protection order. If the court prohibits the defendant from possessing a dangerous weapon other than a firearm, muzzle-loading firearm, bow or crossbow, the court shall specify the type of weapon the defendant is prohibited from possessing.
If the court prohibits the defendant from possessing a firearm, muzzle-loading firearm, bow, crossbow or other dangerous weapon, the court shall direct the defendant to relinquish, within 24 hours after service of the final protection order on the defendant or such earlier time as the court specifies in the final protection order, all firearms, muzzle-loading firearms, bows, crossbows and specified dangerous weapons in the possession of the defendant to a law enforcement officer or other individual for the duration of the final protection order. If the weapons are relinquished to an individual other than a law enforcement officer, the defendant must file, within 24 hours after such relinquishment, with the court or local law enforcement agency designated in the final protection order a written statement that contains the name and address of the individual holding the weapons and a description of all weapons held by that individual. The court may subsequently issue a search warrant authorizing a law enforcement officer to seize any firearms, muzzle-loading firearms, bows, crossbows and other dangerous weapons at any location if there is probable cause to believe such firearms, muzzle-loading firearms, bows, crossbows or dangerous weapons have not been relinquished by the defendant.
5. Final protection order. This subsection applies to a final protection order issued under this chapter.
A. A final protection order issued under this chapter must be for a fixed period not to exceed 2 years, unless extended by the court pursuant to section 4111.
B. An order issued under this chapter must indicate, in a clear and conspicuous manner, the potential consequences of violation of the order, as provided in section 4113 and Title 15, section 393, subsection 1, paragraph D, if applicable.
C. If the court enjoins the defendant under this section and the enjoined conduct constitutes harassment under Title 17-A, section 506-A, the court shall include in the order a warning in conformity with Title 17-A, section 506-A.
6. Limitations. In issuing an order under this chapter, the court may not:
A. Affect title to any real property;
B. Require the execution of a bond by the plaintiff prior to issuance of an order of protection; or
C. Issue a mutual order of protection or restraint. As used in this chapter, “mutual order of protection or restraint” means an order that is granted to the defendant under this chapter or the inclusion of language in an order granted to a plaintiff in an action under this chapter that restricts or limits the plaintiff's conduct with regard to the defendant absent the filing of a separate complaint by the defendant, service of the summons and complaint on the plaintiff and a finding by the court that the plaintiff committed the abuse alleged in the complaint.
Credits
2021, c. 647, § A-3, eff. Jan. 1, 2023.