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Rule 9 – Abuse Prevention

May 14, 2021 | Family Law, Vermont

(a)Application of Civil Rules.

(1)In General. Except as provided in this rule or by statute, the Rules of Civil Procedure shall apply to actions to prevent abuse.
(2)Rules Not Applicable. Rules 16.3 (Alternative Dispute Resolution) and 79.1 (Appearance and Withdrawal of Attorneys) of the Vermont Rules of Civil Procedure do not apply to actions under this rule.
(3)Rules Modified. Rule 30 of the Vermont Rules of Civil Procedure shall apply to actions under this rule, except that a deposition may be taken only by order for good cause shown. Rule 58 of the Vermont Rules of Civil Procedure shall apply to actions under this rule, except that a judgment need not be set forth on a separate document and is effective only when it is in writing, signed by the judge, and entered as provide in Rule 79(a) of those rules.
(b)Content of Complaint. A complaint seeking relief from abuse shall state whether any divorce, annulment, parentage, abuse prevention or separate support proceedings are pending between the parties, whether any orders from such proceedings are in effect, the court in which such proceedings are pending, and the names of the attorneys who have entered their appearance in such proceedings. The plaintiff shall also provide an address and telephone number for notification purposes, which shall not be provided to any person without the written consent of the plaintiff.
(c)Emergency Relief. Temporary orders may be issued ex parte, without written or oral notice to defendant or defendant’s attorney, upon motion and affidavit and findings by the court as required by 15 V.S.A. § 1104. If a request for emergency relief is presented to a district or superior judge who is not sitting in the family court, the judge shall accept the request on behalf of the family court and file the request, documents accompanying the request and the order, if any, in the family court. If the court determines that the contents of the affidavit are insufficient to support the issuance of a temporary order, the plaintiff shall be entitled to present evidence to the court before the court decides whether to grant or deny a temporary order.
(d)Presentation to Other Judge. When an application for a temporary order under this rule is made to and acted upon by one judge it shall not be presented to any other judge except by direction of the first judge or the Administrative Judge.
(e)Denial of Ex Parte Temporary Orders. When a judge denies an application for temporary order under this rule, the judge shall record the reasons for the denial in writing and shall give the written denial to the plaintiff. In addition, any denial in whole or in part shall inform the plaintiff that, within 7 days after entry of the denial on the docket, he or she may request that the court hold a hearing on the complaint after notice to the defendant. Any such hearing shall be scheduled no more than 14 days from the date of the request.
(f)Grant of Order.

(1)All Orders. An order issued under this rule shall contain the name of the court, the names of the parties, the date of the complaint, the findings that support the order, and the date and time of the order and shall be signed by the court. All orders 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.” All orders shall also inform the parties that each has the right to receive notice in advance of any hearing that the opposing party will be represented by counsel. “Notice in advance of any hearing” is defined as actual notice provided to the opposing party or their attorney in person, by telephone, or in writing sufficiently in advance of the hearing to permit the other party a reasonable opportunity to obtain counsel.
(2)Ex Parte Orders. If the order was issued ex parte, it shall also state upon its face a date, time and place when defendant may appear to oppose the permanent relief sought in the complaint. Ex parte orders shall inform defendant that if he or she has compelling reasons to request a modification of the terms of the order relating to child custody and/or possession of the home, he or she may file a written motion and affidavit requesting a hearing sooner than the date specified on the order.
(3)Final Orders. Every order shall clearly inform the plaintiff and defendant that only the court can amend or revoke the order. Pursuant to 15 V.S.A. § 1103(d), if the court finds that contact between the defendant and the child/ren will result in abuse, the court shall specify conditions under which such contact may be exercised so as to prevent further abuse. In determining contact between the defendant and the child/ren, the court shall consider the best interests of the child/ren pursuant to § 665 of Title 15, and conditions which will minimize the likelihood of further harm to plaintiff or the children. Such conditions may include supervision or restrictions on transportation, telephone contact, use of alcohol or regulated drugs or other matters.
(g)Modification of Emergency Orders.

(1)Motions to Modify. The defendant may file a motion to modify those terms of an order issued under subdivision (c) which relate to child custody or possession of the home. The motion shall be accompanied by an affidavit setting forth compelling reasons why the relief should be modified prior to the date of the hearing set forth in the order. In addition, as part of the motion, defendant shall state whether or not defendant will be represented by counsel at the requested hearing and the name and address of any such counsel. If not represented by counsel the defendant shall state a mailing address and telephone number, which address and telephone number shall not be provided to any person without the written consent of the defendant.
(2)Notice of Expedited Hearing. If the court determines that defendant’s reasons for requesting a change in the terms of the order appear compelling, then the court may schedule a hearing on the motion on at least two days’ notice to the plaintiff or on such shorter notice to the plaintiff as the court deems necessary. In no case shall the hearing be held unless the plaintiff has received personal notice of the hearing in writing or orally. If notice to plaintiff is in writing, the clerk of the court shall attach copies of defendant’s motion and affidavit. If notice to plaintiff is oral, the clerk of the court shall inform plaintiff that copies of the papers are available at the court. If oral notice is given, the hearing shall not take place sooner than 48 hours after oral notice is effected.
(3)Orders of Modification. Unless both parties consent, the hearing and any order of the court based on the evidence from such hearing shall address only whether the provisions in the order issued under subdivision (c) which relate to child custody or possession of the home should be modified, and shall not address the merits of the petition.
(h)Continuances. Notwithstanding Civil Rule 40(c), grounds for continuances and for extension of the terms of any order include lack of notice in advance of any hearing that the opposing party will be represented by counsel. “Notice in advance of any hearing” is defined as actual notice provided to the opposing party or their attorney in person, by telephone, or in writing sufficiently in advance of the hearing to permit the other party a reasonable opportunity to retain counsel. If such notice is not provided to the opposing party, upon request by the unrepresented party or on the court’s own motion, the court shall continue the hearing to a specific date that is the next available hearing date that will allow the unrepresented party a reasonable time to obtain counsel. The court shall extend emergency relief for the duration of the continuance.
(i)Signature on Orders. Orders issued pursuant to 15 V.S.A. § 1104 shall be signed by the judge or, after regular court hours or on weekends or holidays, by a member of the court staff as directed by the judge by telephone.
(j)Orders Granting the Defendant Relief from Abuse. The court may issue an order granting the defendant relief from abuse only: (1) upon the filing and service of an affidavit and complaint, or affidavit and motion, executed by the defendant, and upon notice and opportunity to be heard, or (2) in cases in which a complaint or petition has been filed under Rule 4.0 or 4.1, of these rules, pursuant to Rule 4.3(a)(3) or (4) .
(k)Automatic Child Support Hearing. Whenever the physical responsibility provisions of a final order issued under this rule would modify the physical responsibility provisions of a final order issued in a proceeding under Rule 4.1, the court shall order a child support modification hearing to be set and shall proceed as provided in Rule 4.2(f).
(l)Petition for Relief by or on Behalf of a Vulnerable Adult.

(1) A request for relief from abuse under Title 15 may be combined with a request for relief under Title 33, and a plaintiff eligible for relief under both statutes may elect to proceed under one or both statutes that provide relief from abuse. When a request for relief is made under both statutes, the court shall make findings and may issue relief under either statute providing relief from abuse. If the plaintiff moves to amend the complaint to add a claim under either statute, the court may proceed with the hearing or continue the hearing to a later date, on the amended claim in its discretion.
(2) If the petition for relief is filed by an interested person on behalf of a vulnerable adult, the petitioner shall hand deliver a copy of the petition and actual notice of any final hearing under 33 V.S.A. §§ 6934-6936 to the vulnerable adult unless the court orders another method of service. The petitioner shall certify in writing to the court prior to any final hearing that a copy of the petition and actual notice of the final hearing has been delivered to the vulnerable adult.
(3) The court shall determine whether the vulnerable adult is capable of expressing his or her wishes with respect to the motion or petition. If the court finds that the vulnerable adult is capable of expressing his or her wishes and has knowingly and voluntarily stated that he or she does not wish to pursue the petition or motion, the court shall state the basis of those findings on the record and shall dismiss the petition or motion.
(4) A guardian ad litem appointed by the court pursuant to 33 V.S.A. § 6938(b) shall be governed by Rule 6.1(c)(2), (c)(3), (e) and (t).

Vt. R. Fam. Proc. 9

Added Aug. 22, 1991, eff. Nov. 1, 1991; amended July 30, 1993, eff. Sept. 1, 1993; Aug. 29, 1995, eff. Dec 1, 1995; Jan. 23, 1996, eff. April 1, 1996; June 27, 1996, eff. Sept. 1, 1996; Dec. 6, 2001, eff. April 1, 2002; Jan. 28, 2002; eff. Jan. 28, 2002; Oct. 23, 2002, eff. Oct. 23, 2002; Nov. 26, 2002, eff. Nov. 26, 2002; amended Dec. 10, 2009, eff. Feb. 12, 2010; Sept, 12, 2013, eff. Nov. 12, 2013; July 20, 2015, eff. Sept. 21, 2015; Aug. 25, 2016, eff. Dec. 5, 2016; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes-2018 Amendment

Rule 9(e) is amended to extend its 5-day time period to 7 days, consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6, which adopts the day-is-a-day counting system from the Federal Rules. See Reporter’s Notes to simultaneous amendments of V.R.F.P. 1. The required hearing date is extended from 10 to 14 days from the issuance of the order for consistency with 15 V.S.A. § 1104(b) as amended by Act 11 of 2017.

Reporter’s Notes-2016 Amendment

V.R.F.P. 9(j) and (k) are amended for conformity with the simultaneous abrogation of former V.R.F.P. 4 and promulgation of restyled and reorganized V.R.F.P. 4.0–4.3. See Reporter’s Notes to those rules.

Reporter’s Notes-2015 Amendment

Rule 9(a)(2) is amended to reflect the fact that V.R.F.P. 18, promulgated simultaneously, establishes a mediation rule for Family Division cases that renders the application ofV.R.C.P. 16.3 for alternative dispute resolution unnecessary and inappropriate.

Note that new V.R.F.P. 18(a) makes clear that mediation under Rule 18 does not apply in abuse proceedings under Rule 9. Also, under V.R.F.P. 18(c)(3), mediation may not be ordered in a Rule 4 or 8 proceeding if Rule 9 proceedings are pending between the parties or a final order issued in such proceedings is in effect. V.R.F.P. 18(c)(4) provides that even if an order issued in a prior abuse proceeding is no longer in effect, the court may order mediation only on a finding that it is appropriate in the circumstances. See Reporter’s Notes to V.R.F.P. 18(a), (c).

Rule 9(e) is amended to expedite proceedings for holding a hearing when an ex parte temporary relief-from-abuse order has been denied by requiring that the written denial must inform the plaintiff that the request for hearing must be filed within five business days after entry of the denial on the docket. The time period is stated as five “business” days for the benefit of self-represented litigants. It is consistent with V.R.F.P. 6(a) (applicable by virtue ofV.R.F.P. 9(a) ), which provides that a five-day period does not include Saturdays, Sundays, or legal holidays. Under the civil rule, the period is extended if the last day is one on which the clerk’s office is inaccessible.

Reporter’s Notes-2010 Amendment

Rule 9(a)(3) is amended to provide that in relief from abuse actions, depositions under V.R.C.P. 30, which is otherwise applicable by virtue of Rule 9(a)(1), may be taken only on order for good cause shown. The amendment is consistent with the similar provision of Rule 4(g)(2)(A). While the use of depositions in relief from abuse actions is infrequent because of the short timeframe of most such actions, a defendant under V.R.C.P. 30 may seek a deposition on ten days notice at any time after the action is commenced. To prevent routine use of depositions for delay or harassment or to impose expense, the party seeking to take a deposition must show actual need-for example, the unavailability of probative testimony by other reasonable means.