PURPOSE
A preliminary order is sought when the petitioner has reasonable cause to believe that a child is in immediate risk of serious harm and that a protection order is necessary to protect the child prior to the regularly scheduled hearing on the petition.
LEGAL BASE
| 1. | Title 22, MRSA §4034, permits the court to make a preliminary protection order if the court finds by a preponderance of the evidence presented in the sworn summary or otherwise that there is an immediate risk of serious harm. |
| 2. | The preliminary order automatically expires at the time of the issuing of a final protection order under §4035. |
| 3. | The custodian may consent to the order and waive hearing on preliminary order (see Consent to Preliminary Protection Order and Waiver of Hearing, subsection G). |
| 4. | If there is no consent, or if a non-custodial parent requests a hearing, the court shall hold a hearing on the order within 10 days of the order or the request, unless all parties agree to a later date. |
| 5. | The ex parte order or the order made after a hearing may be for any of the dispositions under §4036 (see Child Protection Petition, subsection A). |
PRACTICE STANDARDS
| 1. | See Section IV for basic policy on child protection, especially subsection I for key terms, and subsection C for red flag indicators, and subsection F, Petitioning for a Protection Order (PC53). |
| 2. | There must be sufficient evidence that the child is in "immediate risk of serious harm", whether the parents are consenting or not. |
| 3. | See Sworn Summary of Facts and Affidavit, subsection C. |
COMPLETING THE PRELIMINARY PROTECTION PORTIONS OF THE PETITION
| 1. | These instructions are written as if the form were to be completely filled out by the Department; individual judges may prefer that their clerks fill out particular portions. |
| 2. | Complete portion per instructions for filing a petition, with the following exceptions: |
| a. | Leave in all of item 6, adjusting plural if only one child. |
| b. | Complete item 7, (summary of facts), specifying both the serious harm threatened (see Section IV, subsection A, for definitions and key terms, and Section IV, subsection C for red flag indicators) and why the risk of serious harm is immediate (i.e., is occurring or why it is very likely to occur prior to the hearing on the petition). See Sworn Summary of Facts and Affidavits, subsection C. |
| c. | Attach also notarized affidavits by worker and/or other persons. |
| d. | In item #8 check the one applicable block regarding prior notice (informing) of intent to request a preliminary protection order (see Reasonable Steps to Inform Parties of Intent or Action, subsection B). |
| (1) | If notice (informing) has been given, check the block and list persons informed. |
| (2) | If notice (informing) attempted without success, check the block and list persons who were sought. |
| (3) | If notice (informing) was not done because delay would cause serious harm to the child and/or prior notice would increase risk of harm to child or petitioner: |
| (b) | Cross out alternative not used, if either. |
| 3. | Complete prayer #4, with the specific preliminary protection order being requested. (See Petitioning for a Child Protection Order, PC53, Section IV, subsection F, for choices and wording.) |
COMPLETING THE PRELIMINARY PROTECTION ORDER (Form BRDPC-012)
| 1. | The Department will offer to complete the order, unless the court requests otherwise. |
| 2. | The Department will resist offers of opponent attorneys to complete the order, unless the Department is in complete agreement on exact wording. |
| 3. | The top part is filled out to correspond with the petition, unless a preliminary order is being requested or ordered for only one of several children. |
| 4. | After "IT IS ORDERED...children," add names of children to whom the preliminary order applied. |
| 5. | After "be given the following protection:" complete the preliminary order made by the court. If the order is not the same for all the children listed in 5 above, list the children by name and preliminary protection ordered for each. |
| 6. | After "IT IS FURTHER ORDERED..., by:" complete persons to be served and method(s) of service ordered for each person. |
| 7. | Complete date judge signs, add District Court number, and location of court. |
| 8. | The back side of the order is designed to cover four situations: |
| a. | If the parents are consenting to waiver of hearing before the judge at the time the order is issued (see Consent to Preliminary Order and Waiver of Hearing, subsection G). |
| (1) | Slash out the portion "NOTICE...HEARING" at the top of the back side. |
| (2) | The judge will check the block "this constitutes a valid waiver of hearing." |
| (3) | Slash out the second box and "the foregoing order...rescinded." |
| b. | If parents are not consenting or are unavailable at time the Order is issued: |
| (1) | Complete court’s district number, town, county, date and time of hearing set by the court, the date the judge signs the order, and the court’s district number under the line where the judge signs. |
| (2) | Leave the rest of the blanks blank. |
| c. | If the custodial parent(s) later come forth to consent before the court: |
| (1) | The judge will check both blocks ("this constitutes..." and "the foregoing order...rescinds." |
| (2) | The date the judge signs and court’s district number are filled in. |
| d. | If the non-custodial parent later comes forth: |
| (1) | In the middle of the page after "A non custodial parent...", add date of his request for hearing, the court’s district number, town, county, date and time the court sets for hearing. |
| (2) | After "...by" add method of service of this order. |
| (3) | Fill in date the judge signs and the court’s district number. |
| e. | If it comes to the worker’s attention that a hearing has been scheduled at the request of a non custodial parent, the Assistant Attorney General should be notified at once to determine: |
| (1) | Whether the Department has been properly served, and if not, how the Department shall proceed. |
| (2) | How this effects the Department’s strategy and case plans. |
| 9. | See Service of Preliminary Order, subsection K. |
| 10. | See Routing of Legal Documents, subsection V. |
