In the latest Weekly Wright Report:

Shielding Court Records of Domestic Protective Order Cases

By: Frederick L. Kobb

Domestic violence cases can be stressful for both the person bringing the case, referred to as the petitioner, and the person against whom the case is brought, referred to as the respondent.  When a petitioner files a case seeking an order for protection against domestic violence the court process can be intimidating and scary.  Court procedures seem elaborate and slow, and having to face an abuser in person can be traumatic.  At the same time, respondents face their own challenges with the court’s procedures.  By the time a respondent has a chance to defend against the allegations of abuse, the court typically has already issued a temporary protective order based solely on the statements of the petitioner, and that order becomes part of the court record even if the court later denies a final protective order or the petitioner dismisses the case.  The consequences of having a court record in a domestic violence case can be far reaching and devastating.  There are, however, situations where a respondent can minimize this impact by asking the court to shield the case record from public view.

A respondent may ask the court to shield the record of a domestic protective order case when one of the following three outcomes has occurred:

• the court denied issuing a protective order;
• the petitioner dismissed the protective order case; or
• the respondent consented to the entry of a protective order.

Even if one of those outcomes has been achieved, there are several conditions that a respondent must meet to take advantage of the opportunity to shield.  The court record is not subject to shielding if any of the following is true:

• the respondent had a final protective order entered against them in a case involving the same petitioner as in the case for which shielding is sought;
• another protective order case is pending between the respondent and the same petitioner as in the case for which shielding is sought;
• the respondent was convicted of a crime arising from abuse against the petitioner; and
• the respondent is the defendant in a pending criminal charge of alleged abuse against the petitioner.

Even when the conditions for shielding exist, a respondent may not file a request to shield a domestic protective order case record until three years after the case concluded.  That delay is intended to assure that the respondent will not bring a legal action against the petitioner in connection with the protective order case, as the statute of limitations will have run.  Alternatively, the respondent can avoid the waiting period by filing along with the request to shield a waiver of all tort claims (e.g., abuse of process, assault, defamation) that they might have had in connection with the case.

When a respondent requests that the court shield a domestic protective order case record, the court will schedule a hearing on the request and give the petitioner notice of the hearing.  Even if the respondent has satisfied the conditions for shielding, the court is not required to grant a request to shield.  Further, the petitioner may contest the request to shield.  In deciding whether to grant the request, the court will consider the following factors:

• the privacy of the petitioner or the respondent;
• the potential danger of adverse consequences to the petitioner or the respondent; and
• the potential risk of future harm and danger to the petitioner and the community.

When the court shields a case record, it is not accessible by the general public.  Thus, the case will not appear on the Maryland Judiciary Case Search website and the case file cannot be viewed at the clerk’s office.  Even after shielding, law enforcement, the prosecutor’s office, and an attorney who represented the petitioner or the respondent may view the court record.  The court may also grant access to the case record to a person that has “a legitimate reason for access” upon the filing of a subpoena or a motion.  That could be a school, daycare center or medical provider as part of a hiring process.

Shielding a domestic protective order case record can be an important tool for a respondent, especially one whose employment could be jeopardized by having been involved in a protective order case.  It is important that a respondent in a protective order case be familiar with the conditions under which shielding may occur even before the case is concluded so they can proceed with the case in a way that will allow them to satisfy the conditions for shielding if necessary.

If you know anyone who needs assistance with a domestic protective order case or has questions about the procedures associated with a request to shield a protective order case record, they may contact me, Fred Kobb, at (410) 659-1348 or fkobb@wcslaw.com.