You and your spouse are living together but he/she wantrs you out! You are documented as a good mother/father and there has never been an incident of violence and your spouse will probably not win a motion for exclusive possession in the divorce - not enough money, no relatives nearby, can't move, etc.
Your spouse thinks, OK, I'll make a claim of threats and violence, take facts out of context, etc. and call the cops.... What next?
First Protect Youself!
1. Have a recorder handy. If you think your spouse is trying to provoke you - turn it on. Whether it is ultimately admissible in court doesn't matter, It may pre-empt an arrest by bolstering your story when the cops arrive.
2. Be careful with e-mails and other written documents where words can be taken out of context.
3. You may want your team to "kill" the other guys, but never say that word to your spouse.
4. Put your guns away with friends or relatives outside the house. Their presence may wrongly be termed "threatening." The police will seize them if there is an arrest and you may never get them back from the court. AND Your angry spouse may shoot you!
5.If all else fails and you are arrested call a lawyer immediately who is familiar with Family and criminal law. You have the right to a FERNANDO Hearing.
Resolving your now ciminal case:
1. You will come to court where your first stop will be the family relations office.
2. They are not on your side, you are charged with domestic violence, they assume you are guilty or will "err on the side of caution" which amounts to the same thing.
3.Famly relations will recommend to the judge certain restrictions on you not to molest the "victim," Etc., and nearly always, even if the police have not done so, order you out of the house.
4. Your matter will now go to the judge. HE will most likely follow whatever recommendation he gets from the social workers at family relations, no matter how little they actually know - since they are "erring on the side of caution" and will only really get into professional trouble if, after a hearing, you do hurt your spouse not if you are hurt disadvantaged, can't see your kids etc. After all you are the "criminal" Don't assume your presumption of innocence under the Constitution works with state bureaucrats (except the judge of course, but he reliews on THEM too).
5. You now stand before the judge. This is your ONE AND ONLY time to request a Fernando Hearing.
The Fernando Motion Hearing
A Fernando hearing is the opportunity to contest the charges against you and the restriction of your Constitutional right to contiue to live in your own home.
The Supreme Court of the State of Connecticut in the matter STATE v. FERNANDO A., Nos. 18045, 18103, November 03, 2009, decided in what it deemed a “public interest appeal,” ruled that § 54-63c (b), and the cross-referenced General Statutes §46b-38c permit the trial court to issue a criminal protective order at the defendant's arraignment after consideration of oral argument and the family violence intervention unit's report
(family services report). The Court concluded further that the trial court is required to
hold, at the defendant's request made at the initial hearing, a subsequent hearing within a
reasonable period of time at which the state will be required to prove the continued
necessity of that protective order by a fair preponderance of the evidence, which may
include reliable hearsay.
The state (and presumably your spouse who made the claims) must prove the case sufficiently, and you right to present evidence contradicting their case, before the court imposes the loss of your home to you. Win this Motion and you get to go home, but that doesn't end the case.
Trial or alternative diversionary programs
You as a person charged with a crime, e.g. threatening, domestic violence, assault etc. have the right to a trial. The stae must prove its case beyond a resonable doubt. You may have a jury or judge hear the evidence, theirs and yours, who will decide your fate. Most people, however, do not want to experience the risk, time and costs of a trial. Loose and you may go to jail and have a criminal record.
The State of Connecticut, often through the family relations office, offer a number of programs to address anger issues, domestic violence, alcohol and drug abuse and other root causes of violence. You may, after being charged with a crime, apply for one of these programs. The Court after reviewing your application and any recommendations from the state, program personnel, family relations or even your spouse, may grant your entry into such program. This is called a "Diversionary Program" becaause your case is being diverted out of the routine criminal process. From that point your charges, though still pending, are held in abeyance while you perform the duties required of the program. Successful completion often means the charges are dismissed (dropped) and you resume life with a clean record.
Fernando rules are addressed in my next legal guide: "Fernando Motion."