How Can a Protective Order Affect My Divorce or Custody Case?

A Protective Order is a type of restraining order that the Court may enter between two people who have a domestic relationship. The Court may grant a Protective Order when there have been one or more acts of “abuse” – as defined by MD Code, Family Law, § 4-501 – between the Petitioner and the Respondent. In a previous article, we discussed the basics of Protective Orders, which can be found here.

Protective Order cases frequently involve two people who have a domestic relationship – including people who are married to each other, have children together or both. Since Protective Orders often signal the end of the relationship between the Petitioner and Respondent, it is not uncommon for Protective Order filings to be accompanied by a filing for divorce or custody. For that reason, it is extremely important to understand how a Protective Order can affect your divorce or custody case. Here are a few primary ways that the entry of a Protective Order can affect a divorce or custody case:

1. Custody of Minor Children

If the Court enters a Final Protective Order, temporary custody of any minor children shared between the parties may be awarded to the Petitioner. The Court may award visitation to the Respondent if the Court feels that the visitation would be in the best interests of the minor children and can be done without jeopardizing the safety of the Petitioner. The Court may grant temporary custody to the Petitioner without visitation being awarded to the Respondent, in which case the Respondent would not have visitation rights with the minor children until the Protective Order expires or there is a subsequent Court Order.

Note that in a Protective Order, the Court may only award temporary custody.  The word “temporary” is used because the custody terms will only remain in effect for the duration of the Protective Order – typically one (1) year – or until a subsequent Court Order is issued.  If there is a divorce or custody case which is separately filed between the parties, the Court may subsequently enter an Order in that case which can more comprehensively address custody, visitation and other terms relating to the minor children.  If you are the Respondent in a Protective Order case and not given access or visitation to your minor children, you may want to consider filing a divorce or custody case as soon as possible to address this issue.

2. Use of the Family Home

If the Court enters a Protective Order, the Petitioner can be awarded use of the family home and the Respondent can be forced to vacate the family home. MD Code, Family Law, § 4-501(j) defines the “home” as the “principle residence of a person eligible for relief” which is owned, rented or leased by that person. Pursuant to MD Code, Family Law, § 4-506 (d)(4), the Court may “order the respondent to vacate the home immediately and award temporary use and possession of the home to the person eligible for relief.”

If you are awarded use and possession of the family home pursuant to a Protective Order, this can give you and your children stability for the immediate future. This stability can be particularly helpful as you navigate a divorce or custody case. If you are forced to vacate the family home pursuant to a Protective Order, you could face a number of challenges as you go through your divorce or custody case. These challenges include the logistical difficulty of locating and securing a new residence, the financial burden of securing an additional residence and ensuring that your new residence is suitable for your minor children.

3. Judicial Finding of Wrongdoing or “Abuse”

In a Protective Order case, the Petitioner has the burden of proof to show that the Respondent committed a statutorily-defined act of “abuse.” The Respondent has the right to contest the allegations of abuse and have a contested hearing on whether such abuse occurred. If the Petitioner is successful in meeting their burden of proof, the Court will enter a Protective Order and make a judicial finding that the Respondent committed an act of abuse.

In a divorce or custody case, each spouse or parent’s treatment of the other can be a very important factor when deciding issues such as custody and the distribution of marital property. If one spouse has previously been found by the Court to have committed an act of abuse, that can adversely affect them in the divorce or custody case. Similarly, the Petitioner may point to the outcome of the Protective Order case and finding of abuse as to why they should be ordered a favorable custody or financial outcome.

Our experienced attorneys at Greenberg Legal Group LLC have years of experience representing clients in divorce, custody and protective order actions. Our firm is located in Annapolis, Maryland and practices in Courts throughout the State of Maryland. Please contact our office at (410) 237-6558 for further assistance.