A Closer look at Protection From Abuse Orders under RSA 173-B and Civil Restraining Orders under RSA 458 (2003 Update)Hon. Susan B. Carbon and Attorney Elizabeth Paine

Judge Carbon would like to remind readers that the following commentary was written in 2003 and is reprinted here.

The purpose of DOVE representation is to help a petitioner obtain a final domestic violence protective order under 173-B. The current statute, entitled Protection of Persons from Domestic Violence, represents years of hard work in the legislature to craft a law that provides for the safety of victims.  In fact, New Hampshire was one of the first states in the country to enact a statute specifically designed to provide relief from abuse for victims of domestic violence.  Advocates for battered women have taken great care in defining the scope of protection, the class of protected persons and the mechanisms through which the statute will be enforced.  New amendments and revisions in the statute took effect on January 1, 2000, bringing it into compliance with the National Council of Juvenile and Family Court Judges’ Model Code and the federal Violence Against Women Act.   

Under New Hampshire law, the District Court and Superior Court have concurrent jurisdiction over domestic violence protective order cases.  In Grafton and Rockingham Counties, the Family Division has jurisdiction over these cases as well.  The original District Court Protocol and the 2002 update were each developed and refined after months of work by judges, clerks, attorneys, law enforcement officers, advocates and others to ensure that it accurately and completely addresses the issues.  Regardless of which District Court or Family Division location the petitioner files a request for a protective order, the Domestic Violence Protocol provides uniform procedures and best practices for processing these cases.1  The District  Court Domestic Violence Protocol compliments the multi-disciplinary protocols developed by the Governor’s Commission on Domestic and Sexual Violence. Copies of the District Court Domestic Violence Protocol are available through the DOVE Coordinator (224-6942) or the Office of the Administrative Judge of the District Courts (271-6418).

Occasionally petitioners, seeking relief from domestic violence in Superior Court, have, on advice of counsel, sought restraining orders under the domestic relations statute, RSA 458.  This statute is not the most effective tool for the DOVE practitioner since it limits the protection available for the victim.  Indeed, the DOVE practitioner will not even be engaged originally for a restraining order under RSA 458, since DOVE is designed to help petitioners obtain protection orders under RSA 173-B.  However, in the event the petitioner is also involved with a marital case, it will be helpful to understand some important differences between the statutes.

The legislature designed RSA 458 to be used as a domestic relations statute with a focus on divorce and other marital proceedings. While it grants a court the ability to issue a restraining order (as distinguished from a protection from abuse order under RSA 173-B) for longer than a year (the initial limit under RSA 173-B), the prevention of domestic violence and the safety of victims is not its intended purpose.  Those who favor the use of RSA 458 ask, “Why get a one year order under RSA 173-B when a permanent order is available under RSA 458?” The answer is clear when both statutes are contrasted in greater detail.

*Persons Protected: The range of protected persons is greater under RSA 173-B.2  Under RSA 458 an order is only available to parties for whom that statute applies, namely those who have filed for divorce, separation or custody.  An order sought under RSA 173-B is available to all of those persons and more: current and former spouses, current or former intimate partners and certain family and household members.

*Federal Full Faith and Credit Provisions under the Violence Against Women Act: Orders issued under  RSA 173-B are eligible for enforcement mechanisms granted by federal law if the protective order complies with federal requirements.  Under the federal Violence Against Women Act, domestic violence protective orders are entitled to full faith and credit in every jurisdiction in the country if due process requirements and certain jurisdictional requirements have been satisfied.  The plaintiff must file a petition (or an independent motion within an existing case) setting forth the specific basis upon which a protective order is needed.  The defendant must be served and be afforded an opportunity to participate.  Assuming the plaintiff qualifies as a protected person, the order must also include a finding that the defendant represents a “credible threat” to the safety of the victim, or otherwise prohibit the defendant  from abusing or threatening to abuse the victim.3  If these requirements are met, the plaintiff is entitled to have the order enforced anywhere in the country.  She need not seek a new order in any new location where she might travel, whether for business or personal reasons.

All of these requirements are included procedurally in RSA 173-B.  Additionally, the statute provides that the court’s findings are based on a preponderance of evidence standard.  By contrast, RSA 458 does not require that the defendant receive all of the due process protection required by the federal statute.  A restraining order can be issued under this statute without notice to the defendant, without a finding of a “credible threat” and at the discretion of the court.  There is no requirement that the defendant be given notice of any of the allegations that led to the restraining order, nor there is any requirement that the court find that abuse has occurred.  Moreover, there is no standard of proof upon which an order is to be issued.  And finally, RSA 458 does not even include a definition of “abuse”, since none is required to issue a restraining order thereunder.

*Definitions of abuse:  RSA 173-B defines a series of acts which qualify as “abuse” under the statutory framework.  They include the statutorily defined crimes of: assault, criminal threatening, sexual assault, interference with freedom, destruction of property, unauthorized entry and harassment.  Interestingly, as noted above, RSA 458 does not define the term “abuse”.  In fact, there need not even be a finding of abuse for a restraining order to be issued under this statute.  Therefore, making a finding of abuse without the definition included in the statute, or issuing an order without a finding, may raise constitutional questions.  If the underlying predicates of VAWA are not met, the client may not be well served.  If there is no finding of abuse or credible threat, the order will not be entitled to protection in all other jurisdictions in the country.

*Weapons:  Most importantly for the safety of clients served by DOVE, RSA 458 does not authorize the relinquishment of weapons upon the issuance of the restraining order.  The federal Gun Control Act mandates the relinquishment of weapons upon issuance of a final protective order but only after due process requirements have been satisfied.4  Included among the amendments to RSA 173-B in January 2000 were provisions making New Hampshire’s relinquishment requirements consistent with federal law, namely that all firearms and ammunition shall be relinquished at the time of a final order; relinquishment at the time of a temporary order remains discretionary.  However, the practice of most judges (and recommended by the protocols) is to order relinquishment at the time of ex parte orders since the risk of danger to the victim is particularly pronounced at this time.  If not raised by the Court, it is certainly appropriate for the DOVE attorney to request, even before the final hearing which is normally the time the DOVE attorney appears before the court, a motion seeking an order for the relinquishment of weapons.  DOVE attorneys and their clients need to understand that RSA 458 does not provide this same type of protection.

DOVE attorneys should note that the practice of  including civil restraining orders provided in RSA 458 will not provide the same weapons restrictions as will Protection from Abuse Orders issued under 173-B.  The New Hampshire Supreme Court has recently evaluated protective provisions contained in a stipulation to assess whether they triggered the protections afforded by the federal Gun Control Act.  In Magoon v. Thoroughgood, 148 N.H. 139 (2002),  the Court indicated that the relevant sections of the federal Gun Control Act are only triggered when there is a court order “explicitly” prohibiting the use, attempted use, or threatened use of physical force involving bodily injury.  A restraint provision that does not contain the explicit language of RSA 173-B may not qualify for the weapons protections available under federal law.

 *Custody and Visitation:  Under both RSA 173-B and RSA 458 the court is required to consider domestic violence when making a custody decision.  The customary presumption of joint custody found in RSA 458 does not exist when domestic violence has been found.  Additionally, however, RSA 173-B provides much more guidance and many more protections for visitation than does RSA 458.  When determining visitation, it is appropriate for the Court to consider danger to the children or plaintiff of future domestic violence.  The Court is required to consider the risk of physical or psychological harm to the Plaintiff and children in crafting visitation orders.  It may be appropriate to order supervised visitation, or to condition visitation upon the Defendant’s completion of an appropriate batterer’s intervention program.

*Transfer:  The Challenge Posed by Fitchner:  The New Hampshire Supreme Court addressed the narrow issue of potential conflicts in custody orders in June 2001 when it decided the case of Fitchner v. Pittsley, 146 N.H. 512 (2001).  The Court held that when a superior court has issued custody orders pursuant to RSA 458 and one of the parties subsequently requests a domestic violence protective order, the District Court may not issue custody orders within the context of an RSA 173-B protective order which conflict with the pre-existing custody orders.

The case suggests that when a change of an existing custody order is requested in the context of RSA 173-B domestic violence hearing, DOVE attorneys should request that the District Court hold a hearing to make a determination of abuse and then transfer the case to superior court for a determination on the child custody issue.

Both the District Court protocol and the statute address transfer (in addition to the context in which Fitchner was decided).  When one of the parties requests transfer to another court, the District Court is directed to consider the following factors:  (1) “imminence of danger to the plaintiff;”  (2) geographic accessibility to Superior Court; (3) whether the previously pending case is scheduled for hearing within thirty days; (4) the extent of any existing Superior court orders; and (5) whether the Superior Court has had an opportunity to hear the plaintiff’s allegations in the context of a case pending in that court.  DOVE attorneys should seek verification of any other pending action affecting the transfer.  The protocol provides that prior to transfer when the plaintiff has satisfied the burden of proof on the original petition, the district court must issue the temporary order.  For DOVE attorneys facing a transferred case the final orders should be sought under RSA 173-B to comply with the full faith and credit provisions of the federal statute and for the public safety concerns cited above.

The DOVE Project provides an opportunity to increase the safety of domestic violence victims in New Hampshire.  Attorneys working for this project have the benefit of specific laws under RSA 173-B which have been designed to help their clients.  The protections afforded by this statute have been further enhanced by the multi-disciplinary domestic violence protocols and the Violence Against Women Act.  All of these tools are available to DOVE attorneys as they represent their clients in these difficult cases.

Endnotes

1. The revisions to the District Court Domestic Violence Protocol reflects the state statutory changes through January 2002 and a series of decisions handed down by the New Hampshire Supreme Court which have clarified RSA 173-B.

2. Under RSA 173-B, protection is available to current and former spouses, persons cohabitating with each other, current or former sexual partners, and current or former intimate partners.

3. The Violence Against Women Act 1994, 18 U.S.C. sec.  2265.

4. 18 U.S.C. 922(g) (8).

5. RSA 173-B:9 (I) (a)

Authors

Judge Carbon is the Supervisory Judge of the Grafton County Family Division.

Attorney Paine is the District Court Domestic Violence Specialist.

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