Fernando Hearing Rights for Claimed Domestic Violence Protective Order

Joseph B Barnes III

Written by

Family Law Attorney - Milford, CT

Posted January 17, 2013

Connecticut General Statutes § 46b-15 provides in relevant part that a protectvie order may issue which protects a victrime by vairous restrictions on somene accused of domestic violence even removing such person from the: family home if:

‘‘(a) Any family or household member as defined in section 46b-38a who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member [emphasis added]" makes such a claim leading to an arrest of the alleged perpetrator...

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 Fernando Court stated:

“It is undisputed that criminal protective orders may have a significant

impact on a defendant’s fundamental constitutional rights. See Williams v.

State, 151 P.3d 460, 465 (Alaska App. 2006) (defendant subject to criminal

protective order ‘‘has a liberty interest in choosing his family living arrangements’’);

People v. Forman, supra, 145 Misc. 2d 121 (‘‘Each of the temporary

orders of protection restrict [the] defendant’s liberty to go where he

pleases—he may not go to the home, place of business or place of employment

of his wife, as well as his associational liberty in relation to his wife . . . The orders also exclude him from real property in which [the] defendant otherwise shares ownership and a right to possession.’’ [Citations omitted.]);

Moore v. Moore, 376 S.C. 467, 474–75, 657 S.E.2d 743 (2008) (subject of civil

protective order faces, inter alia, ‘‘immediate loss of his children . . . and

possession of the marital residence,’’ as well as ‘‘future ramifications’’ with

‘‘long-term impact’’ on marital litigation). Moreover, by imposing what some

commentators have referred to as ‘‘de facto divorce,’’ albeit without the

benefit of property division and procedures attendant to the dissolution

context, the protective order further compounds the financial difficulties

attendant to being tried on criminal charges. See J. Suk, ‘‘Criminal Law

Comes Home,’’ 116 Yale L.J. 2, 42, 50 (2006) (criminal protective order

‘‘amounts in practice to state-imposed de facto divorce’’ and because it

raises ‘‘the prospect of punishment for the proxy conduct of being present

at home,’’ it ‘‘shifts the very goal of pursuing criminal charges away from

punishment to control over the intimate relationship in the home’’); see

also C. Frank, comment, ‘‘Criminal Protection Orders in Domestic Violence

Cases: Getting Rid of Rats With Snakes,’’ 50 U. Miami L. Rev. 919, 942–43

(1996) (‘‘courts should take seriously the deprivation of the guaranteed right to enjoy property that will result from the issuance of a criminal protection order’’)." [State V. Fernando, pp. 19-20]

In Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), the United States Supreme Court concluded that the state ‘‘must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.’’ Id., 125.


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