If you have been abused by a family member, boyfriend, girlfriend, a new or former partner of your current boyfriend or girlfriend or by someone with whom you live or lived with, or someone has stalked you, you may be eligible for a Civil Protection Order or “CPO.” A CPO is designed to protect an individual from further harm and temporarily resolve issues between the parties that might, if not addressed, become a problem or require communication between the parties during the pendency of the CPO. Therefore, in addition to the “stay away” and “no contact” provisions, a CPO offers a wide array of relief. CPOs last for one year initially and can be modified or extended for an additional year. Violations of a CPO are punishable by contempt or as a criminal misdemeanor. The victim is referred to as the “petitioner” and the offender is referred to as the “respondent.”
The Intrafamily Offenses Act or “Act” authorizes the issuance of a CPO. There are two requirements to obtain a CPO under the Act. First you must prove that you have an intrafamily relationship with the individual accused of committing what is called an intrafamily offense. Second, the court must find that there is “good cause to believe” that the individual accused of committing what is called an intrafamily offense committed or threatened to commit an intrafamily offense against you. The “good cause” requirement is equivalent to a preponderance standard.
The petitioner must show that he or she is related to the respondent by blood, marriage, legal custody, having a child in common, sharing a residence currently or at any time in the past, sharing a current or former romantic partner, spouse or domestic partner, a history of being stalked by the Respondent or maintaining or having maintained a romantic relationship.
To obtain a CPO, the Petitioner must show that the Respondent committed an act punishable as a criminal offense upon Petitioner’s person. The Intrafamily Offenses Act defines an intrafamily offense as an act punishable as a criminal offense committed by the Respondent upon a person with whom the Respondent shares an intrafamily relationship. Assaults and threats are the most common intrafamily offenses but a Petitioner may allege any criminal offense listed in the D.C. Code to meet this requirement.
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In Maryland a “restraining order” refers to a peace order or a protective order. A restraining order is a legal order issued by a state court which requires one person to stop harming another. In Maryland, there are several types of restraining orders. If you are dealing with a violent or dangerous spouse, you need to take action immediately. Although many people can act like bullies when they are angry, there is a world of difference between someone who says hurtful things and someone who will hurt you. If you believe that you are or your children are in danger, you need to speak with a lawyer competent in handling family matters before things get worse. A restraining order can very well provide you with the protection you need.
If you have a lawyer, he or she needs to be the first person you go to. They can fill out the papers and take them to the judge in order to receive the restraining order. If you do not have a lawyer, you can still receive the restraining order.
The following are the types of domestic violence that enable you to get a protective order. Maryland law defines “abuse” as the occurrence of one or more of the following acts between “family or household members.”
• An act that places a person in fear of imminent serious bodily harm
• An act that causes serious bodily harm
• Rape or a sexual offence
• Attempted rape or sexual offense
• False imprisonment, such as interference with freedom, physically keeping you from leaving your home or kidnapping you.
A Protective Order (also known as a “Domestic Violence Protective Order,” or “DVPO”) is an order made by a civil court to protect a person from physical pain or injury or threat of physical pain or injury. There are three types of protective orders:
Interim protective orders. If you are in immediate danger of abuse and the court is closed, you may get an interim order by going to the nearest District Court commissioner. An interim order goes into effect once the respondent is served by a law enforcement officer. The interim order lasts until a judge holds a temporary hearing.
Temporary (ex parte) protective orders. When you go to court to file for a final protective order, you can also ask for a Temporary order. This can be done without a full court hearing and without your abuser present. Your abuser is notified that you have an order against him as soon as a Temporary order is issued. The Temporary order is in effect for 7 days after service of the order, at which point a full court hearing will be held for a final protective order. The judge may extend the temporary order as needed, but not to more than 30 days.
Final protective orders. A final protective order can be issued only after a full court hearing, where you and the abuser both tell your sides of the story to a judge. You must attend that hearing. If you do not go to the hearing, your temporary order may expire and you will have to start the process over. A final protective order will last up to one year, unless otherwise stated. Orders may also be extended
In a Protective Order, a judge may order your abuser to:
• Stay away from you and your children;
• Stay away from you and your children’s residence, work place, school, day care, friends’ homes, any place where you are seeking shelter, etc.;
• Stop threatening or hurting you;
• Stop contacting or harassing you;
• Move out of the house (if you shared it) and not return;
• Surrender to the sheriff’s office any weapon the abuser possesses;
• Pay for your filing fees and legal fees.
• The Protection Order can also:
• Give you possession of shared property (such as a house or car) except for the abuser’s personal property;
• Award you temporary custody of a minor child, order the abuser to pay temporary child support, and establish temporary visitation;
• Order your abuser to help support you and your children financially;
• Order the abuser to attend treatment programs;
• Other reasonable requests that the judge believes are necessary in order for you to be free from the violence.
A peace order is a civil protection order that you can file for in district court, which is supposed to help protect you from someone who is abusing you. There are three types of peace orders:
Interim peace orders. You would file for an interim peace order only when the district court clerk’s office is NOT open for business (for example, on the weekends, evenings, or holidays). This order would last only until the hearing for a temporary peace order, which would generally be held on the next day that the district court is open or the day after that. The date for the temporary peace order hearing should be written on the interim order.
Temporary peace orders. When you file a petition for a peace order, the judge can hold a hearing for a temporary order. The respondent may or may not be present. The order is effective for up to 7 days after the order is served (but it can be extended for up to 30 days if you cannot serve him within those 7 days or for any other good reason). The order will last until the hearing on the final peace order.
Final peace orders. The respondent has the opportunity to be present at the final peace order hearing. A final peace order can last for up to 6 months.
If you meet the relationship requirement, you can file for a peace order if one or more of the following acts have happened within 30 days before you file for the order:
• An act that causes serious bodily harm;
• An act that places you in fear of immediate serious bodily harm;
• Assault in any degree;
• Attempted or actual rape or sexual offense;
• False imprisonment;
• Trespass; and
• Malicious destruction of property.
Interim, temporary and final peace orders can order the respondent to:
• Stop committing or threatening to commit an act of abuse against you;
• Stop contacting, attempting to contact, or harassing you;
• Stay away from your home, place of employment, school or temporary residence
Additionally, only a final peace order can order:
• You or the respondent to participate in professionally supervised counseling;
• You and the respondent to go to mediation, but only of you both agree to it;
• Order you or the respondent to pay the filing fees and costs of the proceeding.
The relationships that could qualify you for a peace order include any relationship that does not fall under the category to get a domestic violence protective order. So, if you are eligible to file a domestic protection order, you are not eligible for a peace order.
Marital property includes debts and assets that were acquired during the marriage. Assets might include homes or other real estate, retirement plan benefits, and personal property (such as furniture, cars, or bank accounts). Debts might include student loans, credit card debts, and taxes. In D.C., it does not matter whose name is on the title, nor does it matter if only one spouse paid for the property.
In D.C., anything that is not marital property is separate property. Separate property is property one spouse owned before marriage and kept separate all during the marriage. Separate property also includes any gifts or inheritances received from others during the marriage that were given to one spouse alone.
Unless you and your spouse reach an agreement regarding marital property, the judge will divide and distribute the martial property “in a manner that is equitable, just and reasonable.” Equitable does not necessarily mean equal. The law requires the judge to consider “all relevant factors” when dividing and distributing marital property. Some relevant factors may include how long the marriage lasted, each spouse’s needs, or a spouse’s financial obligations to other children.
At least one party must be a resident of the District of Columbia for a minimum of 6 months before filing for a divorce.
A divorce may be granted if the parties have mutually lived separate and apart for 6 months, or have lived separate and apart without cohabitation for one year prior to filing for a divorce. Couples who have pursued separate lives, sharing neither bed nor food, can be deemed living separate and apart, even if they reside in the same house.
The District of Columbia utilizes the doctrine of “equitable distribution”, meaning the the court will distribute all property and debt acquired during the marriage in a just, equitable, and reasonable manner, considering the following factors:
The length of the marriage, other age, health, occupation, amount, and sources of income, vocational skills, employability, assets, debts, and needs of each of the parties, and the opportunity for future acquisition of assets and income ot he custody provisions of the minor children, whether the property distribution is in lieu of or in addition to alimony; each party’s obligation from a prior marriage or for other children; the contribution of each party as a homemaker; any contribution made by one party to help educate or develop the career or employability of the other party, and any interruption of either party’s educational or personal career opportunities for the benefit of the other’s career or for the benefit of the parties’ marriage or children; each party’s contribution to the marital assets (and whether the assets or debts were incurred after separation); the tax consequences for each party subject to distribution; and othe circumstances that caused the breakdown of the marriage.
Sole and separate property acquired prior to the marriage, or acquired during the marriage by gift, bequest, devise, or descent, and any increase thereof, or property acquired in exchange therefor; shall be considered separate property and not subject to division.
Either party may be awarded alimony, and may be indefinite or term-limited. In determining whether spousal support will be awarded, and the amount of alimony that will the paid, the court shall consider the length of the marriage, the age, health and mental conditions of each party, the standard of living established during the marriage, occupation, amount and sources of income, the property awarded in the divorce settlement, vocational skills, employability, length of time necessary to gain sufficient education or training for suitable employment, estate, liabilities, and needs of each of the parties; the opportunity of each for future acquisition of capital assets and income; the fault of either party; the right of a party to receive retirement benefits; any previous award of child support in this case; and the federal tax consequences of the order.
The party that changed their name upon marriage may state in the decree that they will resume either their birth name or a previous name that they desire to use.
The best interest of the child will be the primary consideration in awarding custody. The court favors joint custody unless there is evidence of an intrafamily offence, abuse, neglect, parental kidnapping. The following factors are used in determining the best interest of the child:
1.The wishes of the child, where practicable;
2.the wishes of the parents regarding custody;
3.the relationship of the child with each parents, his or her siblings, and any other person who may affect the child’s best interest;
4.the child’s adjustment to home, school, and community, as well as the possible disruption of the child’s social and school life;
5.the physical and mental capability of each parent;
6.the willingness of the parents to share custody, communicate, and reach shared decisions;
7.each parent’s prior involvement in the child’s life;
8.the demands of parental employment and the parents ability to support a joint custody arrangement;
9.the age and number of children;
10.the sincerity of each parent’s request, and the benefits to the parent.
Both parents are responsible for the support of their children, and the payment of child support is gender-neutral. Child support is determined by the income-shares model, meaning that the level of child support will amount to a set percentage of the non-custodial parent’s income, and may be adjusted according to the age of the children. Prior child support orders that are being paid shall be deducted from a parent’s income before the child support obligation is computed.
The support guidelines shall be applied unless the resulting support would unjust or inappropriate. In such instances, factors that may be considered to deviate from the guidelines are:
other needs of the child are exceptional;
othe non-custodial parents income is substantially less than that of the custodial parent;
othe property settlement provides resources for the support of the child in an amount at least
equivalent to the guideline amount;
othe non-custodial parent needs a temporary reduction in the level of support (but not for more than 12 months)
to help pay off debt or rearrange financial obligations;
othe cost of medical coverage paid for by the custodial parent is significant in comparison to the level of child support
othe custodial parent is receiving child support from more than one non-custodial parent to the extent that the
standard of living is higher than that of the non-custodial parent; or
oany other factors that would make the standard child support determination unfair.
In cases of shared custody, where the child spends at least 40% with each parent, the guidelines are not
presumptive, but rather advisory, and may be adjusted at the discretion of the court using the modified
guidelines set for such circumstances. Child support orders shall include provisions for wage withholding, and health coverage.
Premarital agreements must be in writing, and signed by both parties. They may address such issues as the rights and obligations of each party concerning any property acquired or sold, the modification or elimination of alimony, and any other matter not in violation of public policy or law. Child support may not be adversely affected by a premarital agreement. A premarital agreement is not enforceable if it can be proven that the agreement was signed under duress, or if the party signing the agreement was not made aware of the property or financial obligations of the other party.
The court will consider the following criteria to decide on alimony in a divorce in the District of Columbia:
•Ability of the party seeking alimony to be self-supporting;
•Time necessary for the party seeking alimony to gain sufficient education or training to enable that party to secure suitable employment;
•Standard of living that the parties established during their marriage but giving consideration to the fact that there will be two households to maintain;
•Duration of the marriage;
•Circumstances which contributed to the estrangement of the parties;
•Age of each party;
•Physical and mental condition of each party;
•Ability of the party from who alimony is sought to meet his or her needs while meeting the needs of the other party; and
•Financial needs and financial resources of each party.
In the District of Columbia, when a child is born to unmarried parents or parents who are not in a domestic partnership, there is no automatic legal relationship between the father and the child. The biological father’s name will not be placed on the birth certificate without filling out an Acknowledgement of Paternity (AOP). This is called parentage establishment and establishes the biological father as the legal father. If the parents are married or in a registered domestic partnership when the child is born, there is an automatic legal relationship between the mother’s spouse or the domestic partner, and the child. The spouse’s or domestic partner’s name will be placed on the birth certificate. The mother’s spouse or domestic partner is presumed to be the child’s parent by virtue of the legal union.
How to Establish Parentage1. Voluntary Acknowledgment of Paternity (AOP):
A mother and father can voluntarily sign an AOP form. This process is available to parents if the mother was not married or in a registered domestic partnership at the time of birth, conception or anytime in between. If both parents complete the AOP form, they don’t have to go to court to establish parentage.
A judge in the District of Columbia is required to base a determination of custody by considering the best interest of the child. The law assumes that in most cases it is best for a child to be raised by both parents. This idea is described as a presumption that joint custody is in the best interest of a child. The law also assumes that in cases where there has been child abuse, child neglect, parental kidnapping, or domestic violence, joint custody is not in the best interest of a child.The presumption that joint custody is in the best interest of the child is the starting point for the judge. Before the judge hears any of the facts, he or she assumes that joint custody is in the best interest of the child (unless there has been child abuse, child neglect, parental kidnapping, or domestic violence). You can overcome the presumption of joint custody if you present evidence to the judge that indicates that joint custody is not in the best interest of the child in your case.
To determine what is in the best interest of a child, the law in the District of Columbia requires the judge to consider all relevant factors. In addition, the law says the judge must specifically consider each of these 17 issues:
Property acquired during marriage is called marital property. Depending on the state of residence, marital property is treated differently upon divorce. There are two categories which states fall into when it comes to the treatment of marital property; Community Property and Equitable Distribution. Equitable distribution laws are followed by the majority of states. The following states are the exceptions, the community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
In community property states all property acquired by individuals before they enter into marriage is considered the separate property of that spouse. Also considered separate property is anything received by a spouse as a gift or inheritance, even if received during marriage, and any property that can be traced to a separate property asset. This means, for example, that an asset which is purchased entirely by gift money is considered separate property. Lastly, upon separation all earnings are considered separate property of the earning spouse. This separation need not be a legal separation, one formally recognized by a court. Living separately will constitute a separation when it comes to categorizing earnings as separate property (it is important to know the law in the applicable state, as the date of separation is treated differently in different states.) Upon divorce, separate property is awarded to the owning spouse.
Community property is anything that two spouses own together. Any earnings acquired during marriage until the date of separation are considered community property. Furthermore, any assets which are purchased with the community money are considered to be community property and owned equally by the spouses. Like earnings, all debts incurred during marriage until the date of separation are considered community debts. Debts include anything from credit card balances to car loans and house mortgages. This means that both spouses, no matter who earned the money or who accrued the debt, are considered to own the assets and debt in equal parts. Generally, upon divorce community assets and community debt will be distributed equally between the spouses.
Equitable distribution states treat property upon divorce differently. Generally, equitable distribution refers to an equal distribution between spouses. However these states allow for the circumstances during the marriage and after the divorce to dictate which spouse will be awarded which assets as well as which debt. The goal in equitable distribution states is to give each spouse what is “fair” under the circumstances. This means that courts will consider, among other things, how much each spouse contributed to the marriage as far as earnings go, as well as who takes care of the children of the marriage and even the potential earning capacity of each spouse.
Third parties-those who are not a child’s biological, or “de facto” parent- can sue for custody in the District of Columbia under the Safe and Stable Homes for Children and Youth Act of 2007 (the “Act”). D.C. Code Ann. Secs. 16-831.01 to -831.13, 4-251.0 to .04, 23-2301 (2009). A parent may move to dismiss a third party’s claim at any time on the grounds that the third party does not meet the statutory requirements for standing under the Act, D.C. Code Ann. Sec. 16-831.02(b)(1). As biological parent may move to dismiss the Complaint at any time on the grounds that a third party does not meet the statutory requirements for standing under the Act. D.C. Code Ann. ?16-831.02(a)(1).
There are two categories of individuals under the Act; parents (including biological, adoptive and “de facto” parents), and everyone else (third parties.) There are three categories of third parties who have standing to sue for custody under the Act, based on consent, caretaker status or exceptional circumstances. The first category of third party who has standing to sue for custody under the Act is a third party with the consent of the primary caretaker parent. A third party will have standing under the Act if he or she has obtained consent to the motion or complaint for custody from the parent “who is or has been the primary caretaker of the child within the past three years.” D.C. Code Sec. 16-831.02(a)(1)(A). The second category of category of third party who has standing to sue for Custody under the Act is a third party who has been a caretaker of a child, as specified, under the Act. A caretaker has standing is he or she has both: o Lived with the child “for at least 4 of the 6 months immediately preceding the filing” of the complaint or motion for custody, or, “if the child is under the age of 6 months, for at least half of the child’s life,” D.C. Code Ann. Sec. 16-831.01(a)(1)(B)(i), and o “Primarily assumed the duties and obligation for which a parent is legally responsible, including providing the child with food, clothing shelter, education, financial support, and other care to meet the child’s needs.” D.C. Code Ann. Sec. 16-831.02(a)(1)(B)(ii). The third category of third party who has standing to sue for custody is a third party who lives with the child when exceptional circumstances exist. In order to qualify for standing under this provision, the third party must plead “in detail” why the relief is necessary to prevent harm to the child.
In practice, arguments under this provision are built around impending action by the Child and Family Services Agency, protection from abuse, or the need to obtain some service for the child that would only be addressable with a custody order. If a third party cannot obtain standing under any of the above three categories, he or she may nonetheless be able to claim standing under the Court’s equitable jurisdiction, as was the practice prior to the Act. The Act provides that a third party’s ability to seek custody “under any other statutory, common law or equitable cause of action.” In the instant case there has been no such showing of either a statutory, common law or equitable cause of action that allows Plaintiffs to proceed. In fact, in order to protect a parent’s constitutional rights with regard to their children, the Act presumes that parental custody is in the child’s best interest. D.C. Code Ann. ?16-831.05. Parental rights are further protected by the requirement that the third party bear the burden of proving that parental custody is not in the child’s best interest by clear and convincing evidence. D.C. Code Ann. Sec. 16-831.06(b)(emphasis added). In determining whether the parental presumption has been rebutted the court must find that at least one of the following factors has been proven by clear and convincing evidence: 1. The parents have abandoned the child or are unwilling to care for the child 2. Custody with a parent is or would be detrimental to the physical or emotional well being of the child or 3. Exceptional circumstances, detailed in writing by the court, support rebuttal of the presumption favoring parental custody D.C Code Ann. Sec. 16-831.07 If the third party does not rebut the parental presumption, the court must dismiss the third party’s claim and enter any appropriate judgment in favor of the parent without reaching the second “bests interests” prong.