Protective Orders and Domestic Violence: Full Hearings Offer Expedited Justice

The Connecticut Supreme Court will officially release an opinion holding that people accused of domestic violence crimes will be entitled to an evidentiary hearing “within a reasonable time” before a full protective order would continue to restrain them from their homes – and from their children – while criminal proceedings are ongoing.  Very often, in the context of divorce proceedings, an unfortunate occurrence will result in the arrest of one spouse or the other, with the result that a party is temporarily removed from the marital residence to protect the victim (and perhaps the children) from a threat of violence.  However, whereas criminal defendants were and are always entitled to the presumption of innocence as well as a full evidentiary, adversarial proceeding to determine guilt or innocence (a trial), those individuals who are removed from the home by way of a criminal protective order were often not given the same opportunity for a “hearing,” beyond the limited oral argument of a defendant’s attorney and the opposition from the State’s Attorney and the Office of the Victim’s Advocate.  Now, in the matter of State v. Fernando A., (SC 18045), the Supreme Court of this state has held that our statutes do indeed afford subjects of a protective order the right to a full evidentiary hearing, with witnesses and cross examination, “within a reasonable time” – so long as the defendant’s attorney timely requests such a hearing.  This mechanism will serve to insure that full protective orders are properly issued only in cases in which imminent physical harm indeed faces a spouse or children within a household.  While requiring an additional expenditure of judicial resources, these hearings (for so often as they are requested and not waived by defendants), should also act to minimize those regrettable cases where spouses initiate criminal proceedings in bad faith or upon false claims, in order to gain leverage in pending or future divorce proceedings.  Whether by protecting the victims of abuse or by protecting those accused of the same, adversarial evidentiary hearings are the cornerstone of our judicial system.  Those in contact with the system, under any circumstances, should be confident that their legal advisors are well-versed in the law and familiar with recent case developments.

By: Attorney H. Daniel Murphy

If you have any questions about this posting or confidential inquiries concerning the subject matter, please contact Attorney Joseph C. Maya at jmaya@mayalaw.com.
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