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Vermont
Statutes
Domestic Abuse
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§
1101. Definitions
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§
1102. Jurisdiction and venue
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§
1103. Requests
for relief
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§
1104. Emergency relief
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§
1105. Service
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§
1106. Procedure
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§
1107. Filing orders with law enforcement personnel;
department of public safety relief from abuse database
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§
1108. Enforcement
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§
1109. Appeals
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§
1110. Requests
for child support; transfer to office of magistrate
§ 1101. Definitions
The following
words as used in this chapter shall have the following meanings:
(1) "Abuse"
means the occurrence of one or more of the following acts
between family or household members:
(A) attempting
to cause or causing physical harm;
(B) placing
another in fear of imminent serious physical harm;
(C) abuse
to children as defined in subchapter 2 of chapter 49 of Title
33.
(2) "Household
members" means persons who, for any period of time, are living
or have lived together, are sharing or have shared occupancy
of a dwelling, are engaged in or have engaged in a sexual
relationship, or minors or adults who are dating or who have
dated. "Dating" means a social relationship of a romantic
nature. Factors that the court may consider when determining
whether a dating relationship exists or existed include:
(A) the
nature of the relationship;
(B) the
length of time the relationship has existed;
(C) the
frequency of interaction between the parties;
(D) the
length of time since the relationship was terminated, if applicable.
(3) A
"foreign abuse prevention order" means any protection order
issued by the court of any other state that contains provisions
similar to relief provisions authorized under this chapter,
the Vermont Family Court Rules or chapter 69 of Title 33.
(4) "Other
state" and "issuing state" shall mean any state other than
Vermont and any federally recognized Indian tribe, territory
or possession of the United States, the Commonwealth of Puerto
Rico or the District of Columbia.
(5) A
"protection order" means any injunction or other order issued
for the purpose of preventing violent or threatening acts
or harassment against, or contact or communication with or
physical proximity to, another person, including temporary
and final orders issued by civil and criminal courts, other
than support or child custody orders, whether obtained by
filing an independent action or as a pendente lite order in
another proceeding so long as any civil order was issued in
response to a complaint, petition or motion filed by or on
behalf of a person seeking protection.
(6) "Family"
shall include a reciprocal beneficiary. (Added 1979, No. 153
(Adj. Sess.), § 1; amended 1981, No. 207 (Adj. Sess.),
§ 2, eff. April 25, 1982; No. 218 (Adj. Sess.), §
1; 1991, No. 135 (Adj. Sess.), § 14; 1995, No. 170 (Adj.
Sess.), § 26, eff. May 15, 1996; 1997, No. 153 (Adj.
Sess.), § 4; 1999, No. 91 (Adj. Sess.), § 38; No.
124 (Adj. Sess.), § 10.)
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§ 1102. Jurisdiction and venue
(a) The
family court shall have jurisdiction over proceedings under
this chapter.
(b) Emergency
orders under section 1104 of this title may be issued by a
judge of the district, superior or family court.
(c) Proceedings
under this chapter may be commenced in the county in which
the plaintiff resides. If the plaintiff has left the residence
or household to avoid abuse, the plaintiff shall have the
option to bring an action in the county of the previous residence
or household or the county of the new residence or household.
(Added 1979, No. 153 (Adj. Sess.), § 1; amended 1985,
No. 79, § 1; 1993, No. 228 (Adj. Sess.), § 1.)
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§ 1103. Requests for relief
(a) Any
family or household member may seek relief from abuse by another
family or household member on behalf of him or herself or
his or her children by filing a complaint under this chapter.
(b) Except
as provided in section 1104 of this title, the court shall
grant relief only after notice to the defendant and a hearing.
The plaintiff shall have the burden of proving abuse by a
preponderance of the evidence.
(c) If
the court finds that the defendant has abused the plaintiff
and that there is a danger of further abuse, the court shall
make such orders as it deems necessary to protect the plaintiff,
the children or both, which may include the following:
(1) an
order that the defendant refrain from abusing the plaintiff,
his or her children or both and from interfering with their
personal liberty, including restrictions on the defendant's
ability to contact the plaintiff or the children in person,
by phone or by mail and restrictions prohibiting the defendant
from coming within a fixed distance of the plaintiff, the
children, the plaintiff's residence, or other designated locations
where the plaintiff or children are likely to spend time;
(2) an
order that the defendant immediately vacate the household
and that the plaintiff be awarded sole possession of a residence;
(3) a
temporary award of parental rights and responsibilities in
accordance with the criteria in section 665 of this title;
(4) an
order for parent-child contact under such conditions as are
necessary to protect the child or the plaintiff, or both,
from abuse. An order for parent-child contact may if necessary
include conditions under which the plaintiff may deny parent-child
contact pending further order of the court;
(5) if
the court finds that the defendant has a duty to support the
plaintiff, an order that the defendant pay the plaintiff's
living expenses for a fixed period of time not to exceed three
months;
(6) if
the court finds that the defendant has a duty to support the
child or children, a temporary order of child support pursuant
to chapter 5 of this title, for a period not to exceed three
months. A support order granted under this section may be
extended if the relief from abuse proceeding is consolidated
with an action for legal separation, divorce or parentage.
(d) Relief
shall be granted for a fixed period, at the expiration of
which time the court may extend any order, upon motion of
the plaintiff, for such additional time as it deems necessary
to protect the plaintiff, the children, or both, from abuse.
It is not necessary for the court to find that abuse has occurred
during the pendency of the order to extend the terms of the
order. The court may modify its order at any subsequent time
upon motion by either party and a showing of a substantial
change in circumstance.
(e) No
filing fee shall be required.
(f) Every
order under this chapter shall contain the name of the court,
the names of the parties, the date of the petition, the date
and time of the order and shall be signed by the judge.
(g) Form
complaints and form orders shall be provided by the court
administrator and shall be maintained by the clerks of the
courts.
(h) When
findings are required under this section, the court shall
make either written findings of fact or oral findings of fact
on the record.
(i) Every
final order issued under this section shall bear the following
language: "VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A
TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED
AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR
BOTH." (Added 1979, No. 153 (Adj. Sess.), § 1; amended
1981, No. 218 (Adj. Sess.), § 5; 1983, No. 34, eff. April
18, 1983; 1985, No. 79, § 3; 1993, No. 228 (Adj. Sess.),
§ 2.)
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§ 1104. Emergency relief
(a) In
accordance with the rules of civil procedure, temporary orders
under this chapter may be issued ex parte, without notice
to defendant, upon motion and findings by the court that defendant
has abused plaintiff, his or her children or both. Relief
under this section shall be limited as follows:
(1) upon
a finding that there is an immediate danger of further abuse,
an order may be granted requiring the defendant
(A) to
refrain from abusing the plaintiff, his or her children or
both and
(B) to
refrain from interfering with the plaintiff's personal liberty,
the personal liberty of plaintiff's children, or both;
(2) upon
a finding that the plaintiff, his or her children or both
have been forced from the household and will be without shelter
unless the defendant is ordered to vacate the premises, the
court may order the defendant to vacate immediately the household
and may order sole possession of the premises to the plaintiff;
(3) upon
a finding that there is immediate danger of physical or emotional
harm to minor children, the court may award temporary custody
of these minor children to the plaintiff or to other persons.
(b) Every
order issued under this section shall contain the name of
the court, the names of the parties, the date of the petition,
the date and time of the order and shall be signed by the
judge. Every order issued under this section shall state upon
its face a date, time and place when the defendant may appear
to petition the court for modification or discharge of the
order. This opportunity to contest shall be scheduled as soon
as reasonably possible, which in no event shall be more than
10 days from the date of issuance of the order. At such hearings,
the plaintiff shall have the burden of proving abuse by a
preponderance of the evidence. If the court finds that the
plaintiff has met his or her burden, it shall continue the
order in effect and make such other order as it deems necessary
to protect the plaintiff.
(c) Form
complaints and form orders shall be provided by the court
administrator and shall be maintained by the clerks of the
courts.
(d) Every
order issued under this chapter shall bear the following language:
"VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT
OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL
CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH." (Added
1979, No. 153 (Adj. Sess.), § 1; amended 1985, No. 79,
§ 4; 1989, No. 294 (Adj. Sess.), § 2.)
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§ 1105. Service
(a) A
complaint or ex parte temporary order or final order issued
under this chapter shall be served in accordance with the
rules of civil procedure and may be served by any sheriff,
deputy sheriff, or any municipal or state police officer.
Abuse orders shall be served at the earliest possible time
and shall take precedence over other summonses and orders.
Orders shall be served in a manner calculated to insure the
safety of the plaintiff. Methods of service which include
advance notification to the defendant shall not be used. The
person making service shall file a return of service with
the court stating the date, time and place at which the order
was delivered personally to the defendant.
(b) If
service of a notice of hearing issued under section 1103 or
1104 of this title cannot be made before the scheduled hearing,
the court shall continue the hearing and extend the terms
of the order upon request of the plaintiff for such additional
time as it deems necessary to achieve service on the defendant.
(Added 1979, No. 153 (Adj. Sess.), § 1; amended 1981,
No. 218 (Adj. Sess.), § 2; 1993, No. 228 (Adj. Sess.),
§ 3.)
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§ 1106. Procedure
(a) Except
as otherwise specified in this chapter, proceedings commenced
under this chapter shall be in accordance with the family
court rules and shall be in addition to any other available
civil or criminal remedies.
(b) The
court administrator shall establish procedures to insure access
to relief after regular court hours, or on weekends and holidays.
The court administrator is authorized to contract with public
or private agencies to assist plaintiffs to seek relief and
to gain access to district, superior and family courts. Law
enforcement agencies shall assist in carrying out the intent
of this section.
(c) The
office of the court administrator shall ensure that the family
court and the district court have procedures in place so that
the contents of orders and pendency of other proceedings can
be known to both courts for cases in which an abuse prevention
proceeding is related to a criminal proceeding. (Added 1979,
No. 153 (Adj. Sess.), § 1; amended 1981, No. 218 (Adj.
Sess.), § 3; 1993, No. 228 (Adj. Sess.), § 4.)
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§ 1107. Filing orders with law
enforcement personnel; department of public safety relief
from abuse database
(a) Police
departments, sheriff's departments and state police district
offices shall establish procedures for filing abuse prevention
orders issued under this chapter, chapter 69 of Title 33,
and foreign abuse prevention orders and for making their personnel
aware of the existence and contents of such orders.
(b) Any
court in this state that issues an abuse prevention order
under section 1104 or 1103 of this chapter, or that files
a foreign abuse prevention order in accordance with section
1108(d) of this chapter, shall transmit a copy of the order
to the department of public safety relief from abuse database.
(Added 1979, No. 153 (Adj. Sess.), § 1; amended 1995,
No. 170 (Adj. Sess.), § 27, eff. May 15, 1996.)
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§ 1108. Enforcement
(a) Law
enforcement officers are authorized to enforce orders issued
under this chapter. A foreign abuse prevention order shall
be accorded full faith and credit throughout this state and
shall be enforced as if it were an order of this state. Enforcement
may include, but is not limited to:
(1) making
an arrest in accordance with the provisions of V.R.Cr.P. 3;
(2) assisting
the recipient of an order granting sole possession of the
residence to obtain sole possession of the residence if the
defendant refuses to leave;
(3) assisting
the recipient of an order granting sole custody of children
to obtain sole custody of children if the defendant refuses
to release them.
(b) A
law enforcement officer may rely upon a copy of any order
issued under this chapter or any foreign abuse prevention
order which has been provided to the law enforcement officer
by any source. Law enforcement personnel may rely upon the
written and sworn statement of the person protected by the
foreign abuse prevention order that the order remains in effect.
An officer's reasonable reliance as provided in this subsection
shall be a complete defense in any civil action arising in
connection with a court's finding under subsection (c) of
this section that the order was not enforceable.
(c) A
foreign abuse prevention order shall be enforceable in the
courts in this state if all the following are satisfied:
(1) The
defendant has received notice of the order in compliance with
the requirements of the issuing state.
(2) The
order is in effect in the issuing state.
(3) The
court in the issuing state had jurisdiction over the parties
and the subject matter under the law of the issuing state.
(4) In
the issuing state the law gives reasonable notice and opportunity
to be heard to the person against whom the order is sought
sufficient to protect that person's right to due process.
In the case of ex parte orders, notice and opportunity to
be heard must be provided within a reasonable time after the
order is issued, sufficient to protect the defendant's due
process rights. Failure to provide reasonable notice and opportunity
to be heard shall be an affirmative defense to any charge
or process filed seeking enforcement of the foreign protection
order.
(d) A
person entitled to protection under a foreign abuse prevention
order may file the foreign abuse prevention order in any family
court by filing a certified copy of the order with the court.
The person shall swear under oath in an affidavit that to
the best of the person's knowledge the order is presently
in effect as written. Upon inquiry by a law enforcement agency,
the clerk of the family court shall make a copy of the foreign
abuse prevention order available.
(e) In
addition to the provisions of subsection (a) of this section,
violation of an order issued under this chapter may be prosecuted
as a criminal contempt under Rule 42 of Vermont Rules of Criminal
Procedure. The prosecution for criminal contempt may be initiated
by the state's attorney in district or superior court in the
unit or county in which the violation occurred. The maximum
penalty which may be imposed under this subsection shall be
a fine of $1,000.00 or imprisonment for six months, or both.
A sentence of imprisonment upon conviction for criminal contempt
may be stayed in the discretion of the court pending the expiration
of the time allowed for filing notice of appeal or pending
appeal if any appeal is taken. After two years have passed
from conviction under this subsection, the court may on motion
of the defendant expunge the record of the criminal proceeding
and conviction unless the defendant has been convicted of
a felony or misdemeanor involving moral turpitude or a violation
of a domestic abuse order after such initial adjudication.
(Added 1981, No. 218 (Adj. Sess.), § 4; amended 1985,
No. 79, § 5; 1995, No. 170 (Adj. Sess.), § 28, eff.
May 15, 1996.)
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§ 1109. Appeals
An order
of the court issued under section 1103 of this title shall
be treated as a final order for the purposes of appeal. Appeal
may be taken by either party to the supreme court under the
Vermont Rules of Appellate Procedure and the appeal shall
be determined forthwith. (Added 1985, No. 79, § 6.)
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§ 1110. Requests for child support;
transfer to office of magistrate
A request
for child support under this chapter may be transferred by
the court to the office of magistrate for hearing and disposal.
A magistrate's support order granted under this section may
not exceed three months unless the relief from abuse proceeding
is consolidated with an action for legal separation, divorce
or parentage. (Added 1993, No. 228 (Adj. Sess.), § 5.)
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