Author’s Note: Our firm represents both plaintiffs and defendants in New Hampshire and Vermont in relief from abuse complaints (as they are called in Vermont) and domestic violence petitions (as they are called in New Hampshire). This article deals with defense of such cases, in part because there are many sources of information for plaintiffs in both New Hampshire and Vermont. See, for example, the Vermont Judiciary website, http://www.vermontjudiciary.org/GTC/Family/abuse.aspx or the New Hampshire judiciary website http://www.courts.state.nh.us/fdpp/dv_petitions.htm .
There has been an upswing in relief from abuse (RFA) or domestic violence (DV) cases. It is understandable for a variety of reasons, some of which have little to do with abuse:
- There is no filing fee or service fee for serving the defendant.
- The petition or complaint will usually be reviewed on the same day it is filed, even if the court is not in session. This is in contrast to other temporary relief sought in family court, which can take weeks, and even months, to be heard or decided by a judge.
- If the complaint or petition is denied, under both Vermont and New Hampshire statutes, although each has a slightly different protocol, the defendant will not know that the plaintiff filed the request. Therefore, as a practical matter, there is no downside to filing requests for relief.
- If the petition or complaint is denied, and the plaintiff appeals, a hearing will be set within ten days. Again, the time frame is much shorter than other family court matters.
- If a temporary order is issued, the defendant is served immediately, and all the relief that was ordered (for example, temporary possession of the home, custody of the children), goes into effect immediately.
- Once an order is issued, a hearing must be set within ten days in Vermont, or 30 days in New Hampshire, per statutory requirement.
- In New Hampshire, the rules of evidence, including the rule prohibiting hearsay, do not apply, thus making it easier for unrepresented parties to present evidence.
- “Abuse” has a broad meaning, and does not need to include actual physical harm, but can include threats of harm, or stalking, in New Hampshire, “harassment.” It also includes any kind of restraint, such as blocking a person from leaving his or her home.
Defending against relief from abuse complaints or domestic violence petitions is important, for if a final order is issued, there are certain consequences that can be dire:
- A defendant who is under a relief from abuse or domestic violence order cannot possess firearms.
- If there is a violation of the order (this is also true of a temporary order), the defendant is subject to criminal penalties.
- Persons who have final orders on their record can lose their jobs and can be prevented from obtaining certain jobs. Many employers, including employers in the military and law enforcement, can and do use final RFA or DV orders as sufficient reason to discipline or terminate an employee.
- An RFA or DV order can limit your access to your children, your assets, and your legal and financial documents.
- An RFA or DV order can prevent the defendant from attending public events, or even traveling certain roads, if the plaintiff is in attendance or in proximity
Here are some do’s and don’ts in defending against a relief from abuse complaint or a domestic violence petition.
Don’t violate the temporary order. In a Vermont case a number of years ago where a temporary relief from abuse order was issued, the defendant sent the plaintiff a short love note. The temporary order was dismissed, after a hearing, for lack of evidence, but the defendant was charged and convicted of a violation of the temporary restraining order. If the order provides for no contact, that is exactly what it means. The plaintiff can try to contact you, either directly or indirectly, but you must never respond. If you violate the temporary order, you not only will be charged with a crime, but, in my experience, you will have a harder time convincing the court that no abuse occurred
Don’t give the court the impression you think the plaintiff is crazy or just spiteful, or the court system is biased against you. Family Court judges are conscientious, are dealing with limited facts, and are trying to protect potential victims. In my experience, Family Court judges try hard to be unbiased, and for the most part, they succeed. However, if you are disrespectful to the court or dismissive of the petition or complaint, it will be much harder for the court to rule in your favor.
Don’t just deny the claims; if the only evidence the court hears is the plaintiff’s claims and your denials, the court will likely grant the petition or complaint, because the court will lean on the side of protection.
Do ask for a continuance if you need more time to obtain an attorney and get the facts together. The Vermont statute allows you a continuance if you were unable to obtain an attorney in time for the hearing, and the court will likely allow you a continuance if you can convince the court that you have witnesses that were not available for the hearing, or need more time to prepare In New Hampshire, a continuance will be granted “for good cause shown”, but since New Hampshire provides for more time between the temporary order and the final hearing, a continuance in New Hampshire may not be needed. A continuance means the temporary order remains in place for a longer period of time, but it is worth it. A temporary order, if it does not become a final order, is confidential, and the records will be eventually destroyed by the court.
Do keep any texts, emails or other communications from the plaintiff. The Relief from Abuse or Domestic violence statutes require the court to find not only that abuse occurred but that “there is danger of further abuse.” (Vermont’s statute) or the conduct constitutes a “credible present threat to the petitioner’s safety” (New Hampshire statute). If the plaintiff tries to contact you after obtaining an RFA or DV order, those attempted contacts may be used to persuade the court that the plaintiff does not believe that there is danger of further abuse or a present threat to his or her safety. Remember, however, you can never respond to any communications from the plaintiff after you have been served with a temporary order.
Do obtain discovery, and even take a deposition. VRFP Rule 9 (Abuse Prevention) provides that the court can order depositions to be taken for good cause shown. In New Hampshire, it also appears that depositions may be taken under the general rule in New Hampshire’s Family Division. Depositions are highly unusual in these cases, but they can be invaluable, and are worth seeking, because RFA or DV hearings are the nearest thing to a 19th century trial, before discovery rules were in place, where no one knew ahead of time what evidence was going to be presented. Many judges will not limit the evidence to what the plaintiff stated in the affidavit, and you can be blindsided by evidence with no means to defend against the evidence, if you have not obtained discovery ahead of time.
Do obtain an attorney, if possible, and as soon as possible. These cases can have lasting effects on your life, your job, and your relationship with your children. It is important to obtain legal counsel. An attorney can contact the plaintiff in preparation for the hearing (but not to send messages from you) . An attorney can determine whether the court has jurisdiction, or can assess whether there are other legal issues that need to be addressed. An attorney can subpoena witnesses and records and prepare admissible evidence to help defend you. Perhaps most importantly, an attorney with experience in Relief from Abuse or Domestic Violence cases can work with the plaintiffs or their attorneys to fashion an agreement that does not result in a final order and at the same time protects the plaintiff.