Supreme Court Rules In Protective Order Case

Supreme Court Rules In Protective Order Case

By JOSH KOVNER

The Hartford Courant

4:45 p.m. EDT, October 26, 2009

In a decision that could have ramifications in domestic violence cases, the state Supreme Court ruled 5-2 that a trial judge erred when he denied a defendant's request for a hearing on a protective order that restricted him from having contact with his children without the presence of a third person.

Protective orders are generally automatically issued in domestic-violence cases. They spell out the conditions of defendant's release and usually limit or prohibit contact with the alleged victim. The state law on protective orders requires that a defendant receive a hearing, during which he can challenge the order.

The defendant in this case, identified only as Fernando A. to protect the privacy of the alleged victim and children, was charged in 2007 with assaulting his wife and risk of injury to a minor. The couple, who lived in the Stamford area, were in the process of getting a divorce.

At issue is whether Fernando A. was denied due process rights when a judge at his second court appearance refused a request for an evidentiary hearing.

The Supreme Court found Fernando A. should have had the hearing, and sent the case back to the trial judge for further proceedings.

Fernando A.'s lawyer, Steven D. Ecker, said he believes the decision will result in more frequent, fuller hearings when there is a dispute over the terms of a protective order. Ecker said the court was careful to say that the victim would not be required to participate in these hearings.

There was discussion about Fernando A.'s protective order and the family-relation unit's report on the matter before a different judge at his first appearance. Judge Robin Pavia extended the order to require that Fernando A. have only third-party visitation with his children. The judge said there wasn't time that day for a fuller hearing, and set a date four days hence.

Ecker and co-counsel Alinor Sterling argued that the defendant was entitled to a full hearing within 14 days where evidence was taken and witnesses questioned. But at the second court date, Judge James Bingham ruled that defendant "had already been heard." The judge said the issuance of a protective order was similar to a bail hearing and that defendants weren't entitled to full hearings on bail matters.

In response to the appeal, Senior Assistant State's Attorney Robert Scheinblum asserted essentially the same thing as Bingham — that protective orders arise from bail or pretrial-release proceedings and don't require full hearings.

In his written decision, released today, Justice Flemming L. Norcott Jr. said the legislature didn't intend for the defendant to have a full hearing before the initial issuance of the protective order, which could occur in the immediate aftermath of an arrest. But Norcott said the court "agrees with the defendant's claims that the extended effects of the initial emergency order may well cause a defendant significant pretrial deprivation" of rights.


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