Effective October 1, 2014, Maryland will become the last state in the nation to relax the burden of proof required for victims of domestic violence to obtain a final court order for protection from domestic violence. Maryland law for many years has required that in order to grant a final protective order a judge must find by “clear and convincing evidence” that the respondent has committed one of several prohibited acts against the petitioner. As of October 1st, Maryland will finally join other states that utilize the “preponderance of the evidence” standard in determining whether to grant or extend a final protective order (Fam. Law Art., Sec. 4-506 (c)(1)(ii)).
A “burden of proof” is the duty or obligation a person has in a court proceeding to prove their case. There are several different burdens of proof that are used in various court proceedings.
The most well-known standard is guilt “beyond a reasonable doubt” used in criminal cases. This standard essentially means that if the jury has no doubt as to the defendant’s guilt or if their only doubts are unreasonable, then the burden has been met.
The “preponderance of the evidence” standard, applicable in most civil cases, is the lowest burden of proof one must meet, requiring just enough evidence to establish that a fact is more likely true than not true, or more probable than not (in other words greater than 50%, however slightly over 50% that might be, or enough to “tip the balance”).
The current “clear and convincing” standard lies somewhere between the above two, requiring less than would be required for “beyond a reasonable doubt” and more than “preponderance of the evidence,” although there must be a high probability that something is true in order to meet this burden.
As examples, in situations of ongoing manipulation/control by one party over the other and threats may not be construed as a danger to someone’s safety under the clear and convincing evidence standard, but could be under the preponderance of the evidence standard, allowing a Judge to more easily find that such has caused the victim reasonable fear of serious imminent bodily harm, which is one of the enumerated prohibited acts in the Maryland domestic violence statute.
Remedies available when a final protective order is granted include that an abuser cease all contact with the victim, to stay out of his or her house, temporarily relinquish custody of any children the two share and surrender all firearms.