Rule 9.Abuse Prevention

REPORTER'S NOTES--2026 AMENDMENT: Vermont Rule for Family Proceedings 9(c) is amended as follows. First, the language related to “district and superior” judges and “family court” is deleted. The 2010 unification of all divisions into one superior court with statewide jurisdiction renders that language obsolete. See 4 V.S.A. § 30(a). Second, the amendment replaces the procedure that permitted a plaintiff to present evidence to the court if the court determined that the contents of the affidavit were insufficient to support the issuance of an order, with a more workable solution allowing the court to request a supplemental affidavit instead. Since the majority of requests for temporary relief are filed after hours, a hearing before the court has never been a workable solution. On the other hand, a self-represented plaintiff may initially provide the court with an affidavit that inadvertently omits important details which could make the difference between facts that meet the jurisdictional requirements for a temporary order and facts that do not. The amendment permits the court to make further inquiry via a request for a supplemental affidavit.

REPORTER'S NOTES--2022 AMENDMENT: Rule 9(b) and (g)(1) are amended to add email addresses if available to the contact information that a litigant is required to file with the court.

REPORTER'S NOTES--2018 AMENDMENTS: 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 of V.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 of V.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--2013 AMENDMENT: Rule 9(l) is added to implement the provisions of 33 V.S.A. § 6931 et seq., which provide that a petition for relief of a vulnerable adult as defined in 33 V.S.A. § 6902(14) from abuse, neglect, or exploitation may be filed either by the vulnerable adult or by an “interested person” on the vulnerable adult's behalf. The statute is quite clear that only specific individuals may seek this relief on behalf of a vulnerable adult. The term “interested person” is defined in 33 V.S.A. § 6931 as “a representative of the vulnerable adult, the commissioner of the department of disabilities, aging, and independent living, or the commissioner's designee.” The term “representative” is further defined in 33 V.S.A. § 6902(10) as “a court-appointed guardian, or an agent acting under a durable power of attorney for health care, unless otherwise specified in the terms of the power of attorney.” Except as provided in this subdivision, the proceedings under 33 V.S.A. § 6931 et seq. are governed by the provisions of Rule 9 (except those plainly applicable only to Title 15 protection from abuse proceedings) and the procedural provisions of the statute. Actual notice of the petition and final hearing must be given to the vulnerable adult by in-hand service. To avoid undue distress to the vulnerable adult, this notice must be given by the petitioner. The court has discretion to direct an alternative manner in which this notice shall be delivered by the petitioner. The rule requires the petitioner to certify in writing to the court that a copy of the petition and notice of the final hearing has been delivered to the vulnerable adult. Pursuant to 33 V.S.A. §§ 6934-6936, if a petition for relief, a motion for modification of an order granting relief, or a petition for emergency relief is filed by an interested person, the court is to determine whether the vulnerable adult is capable of expressing himself or herself with regard to the proceeding. If the court determines that the vulnerable adult is capable and does not wish to pursue the matter, the court is to dismiss the petition or motion. To address the possibility that the vulnerable adult's response may be unduly influenced or coerced by the defendant, the rule requires that the court find both that the vulnerable adult is capable and that his or her expression of the wish not to proceed is voluntary and shows an understanding of the consequences of not proceeding. The basis of the findings is to be stated on the record. The rule does not specify the nature of the evidence on which the determination is to be made. If the vulnerable adult or interested person cannot provide accurate and unbiased information, the court may appoint a guardian ad litem pursuant to 33 V.S.A. § 6938(b) and V.R.F.P. 6.1, and charge the guardian ad litem with investigating and reporting on the wishes of the vulnerable adult.

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 time- frame 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

REPORTER'S NOTES--2002 AMENDMENT: Rule 9(a)(3) is added, simultaneously with the amendment of Rule 2(a)(3) and the addition of Rule 4(a)(3), to modify the effect of the July 1, 2002, amendment of V.R.C.P. 58 requiring each judgment to be set forth on a separate document. Such a practice in Family Court would impose undue burdens on clerks in light of the large numbers of orders that fall within the definition of V.R.C.P. 54(a) of a judgment as “a decree and any order from which an appeal lies.” The amendment satisfies the underlying concern of amended V.R.C.P. 58 that there be a written order appropriately entered on the docket from which the time for appeal and other time periods may be calculated. See Reporter's Notes to that amendment. Under Rule 9(a)(3), the court may still make oral findings and conclusions, provided that the judgment is ultimately reduced to writing and entered as provided in the rule. The Court Administrator and Administrative Judge have adopted new forms for use in relief from abuse cases. These forms are designed to be more easily understood. Input was solicited from various participants in the system, including members of law enforcement, the domestic violence community, judges, court managers and court staff. An amendment to Rule 9 was necessitated because the prior rule designated specific language to be included on the forms, some of which was cumbersome and confusing. For example, former Rule 9(f)(3) required the following phrase: “Defendant's presence on the premises with permission of the plaintiff does not invalidate this order.” On the final order form, that sentence does not appear. Rather, language that provides better information and that more clearly alerts defendant to potential problems is included. Specifically the formerly required language has been replaced on the form with the following: “No action or behavior of Plaintiff can amend or revoke this Order. Only the court can amend or revoke this Order.” Additional warnings have also been added to the form. In orders prescribing a schedule for parental contact former Rule 9(f)(3) required the phrase: “Failure to notify the custodial parent that parental contact will not take place as scheduled may constitute grounds for amendment of the parental contact provisions.” That sentence has been removed from the final order form. A relief from abuse order is “issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person.” 15 V.S.A. § 1101(5). The previously required phrase is not relevant to the nature of this order. When there are children involved and parental rights and responsibilities at issue, the court will address such issues with greater specificity and finality in the companion parentage or divorce case. Inconsistent and inconsiderate noncustodial parents may indeed see their visitation rights altered through such behavior, but in a relief from abuse order such attempt to warn irresponsible parents is unnecessary. Of course, language that is required by statute to be included on the form remains in place. See 15 V.S.A. §§ 1103(i) and 1104(d).

REPORTER'S NOTES--2001 AMENDMENT: Rule 9(k) is added simultaneously with the addition of Rule 4(j)(6) to require a child support modification hearing to be held whenever the physical responsibility provisions of a final prevention from abuse order would modify the physical responsibility provisions of a final order issued under Rule 4. The new rule incorporates the provisions of Rule 4(j)(6), which provides for notice to the parties, a temporary order for adjustment of a child support or wage withholding order pertaining to a child affected by the modification, exchange of financial information and material, and a case management conference if ordered by the court. See Reporter's Notes to that rule. “Physical responsibility,” rather than “custody,” is used in the new provision for clarity and for consistency with Rule 4(j)(6) and 15 V. S.A. § 664(1)(B), despite the use of “custody” in Rule 9(f)(2), (g), and in some provisions of the abuse prevention statute. See, e.g., 15 V.S.A. § 1108(a)(3). As in Rule 4(j)(6), the purpose is to make clear that the hearing is triggered only by a change that shifts responsibility for furnishing food, shelter, and other necessary items of support to another parent.

REPORTER'S NOTES--1996 AMENDMENTS: Rule 9(a) is amended to reflect the simultaneous promulgation of Rule 15 covering appearance and withdrawal of attorneys in Family Court actions. Rule 9(h) is amended to make clear that a continuance to allow an unrepresented party to obtain counsel should be no longer than necessary to allow a reasonable time for that purpose. This limitation is especially critical when emergency relief that may affect parent-child contact or other important interests of the opposing party has been granted. The 1995 amendment of the rule made clear that such relief is in effect during the continuance. The present amendment requires that the continuance be to a regularly scheduled hearing time that is on the earliest date consistent with the time that the unrepresented party reasonably needs to obtain counsel.

REPORTER'S NOTES--1995 AMENDMENT: Rule 9(h) is amended to make clear that protections for victims are not eliminated by the grant of a continuance to enable either party to obtain counsel.

REPORTER'S NOTES--1993 AMENDMENT: Rule 9(j) is added to specify the limited circumstances in which the defendant in an abuse prevention proceeding may seek an abuse prevention order. When an abuse prevention proceeding is pending, the defendant may seek an abuse prevention order either by initiating a separate abuse prevention proceeding under Rule 9 or by filing a motion for an order in the pending proceeding. In either case, an affidavit is required, in light of the gravity of the relief sought and to assure adequate notice of the factual grounds to the opposing party. Where defendant seeks relief in a pending divorce or annulment proceeding brought under Rule 4, the final paragraph of Rule 4(n)(2) already provides the alternative of proceedings on motion without affidavit pursuant to the motion provisions of the Vermont Rules of Civil Procedure. See Reporter's Notes to Rule 4(n)(2).

REPORTER'S NOTES: New Family Court Rule 9 is a revision of the rule formerly found at V.R.C.P. 80(m). The subdivisions of the rule are now alphabetically, rather than numerically, labelled, but most of the rule is unchanged. First, a sentence is added to subdivision (c) to establish the procedure for filing requests for emergency relief that are presented directly to a district or superior judge not sitting in the family court. This addition is needed as a result of the statutory amendment of the trial courts' jurisdiction. Under 4 V.S.A. § 454(14), the family court has exclusive jurisdiction to hear and dispose of abuse prevention proceedings. However, also under the same statute, any district or superior judge may issue orders for emergency relief pursuant to § 1104 of Title 15. The rule makes it clear that in those circumstances in which an individual does not file a request for emergency relief with the clerk of the family court and instead presents the request to a district or superior judge, the judge shall accept the petition on behalf of the family court pursuant to V.R.C.P. 5(e), act on the request and then forward the documents to the family court clerk. Second, subdivision (d), formerly Civil Rule 80(m)(4), is amended. This subdivision provided that when a request for emergency relief had been submitted to and acted upon by one judge, the request could not be submitted to a second judge except by permission of the first judge. This is changed to authorize submission to a second judge either by permission of the first judge or by permission of the Administrative Judge. The third change is in subdivision (e), formerly Rule 80(m)(5). The amendment requires that a plaintiff whose application for ex parte relief has been denied and who wishes to seek relief after notice to the defendant be informed that the hearing must be held within ten days. Former subdivision (m)(6) is relabelled as (f) and divided into three numbered paragraphs. The first paragraph now includes language mandating that each order inform defendants that violation of an abuse order is punishable by imprisonment or a fine or both. This is in accord with 15 V.S.A. § 1104(d), as amended by 1989, No. 294 (Adj.Sess.), § 2. In the same paragraph the rule also adds a requirement that each order inform the parties that whenever counsel is retained the opposing party is entitled to adequate notice of that fact. Most abuse prevention proceedings are pro se. Fairness requires that parties be informed that their adversary has retained counsel sufficiently in advance of any hearing at which counsel will appear so that they may obtain their own attorney. Subdivision (f)(2) also is amended to provide that ex parte orders relating to sole possession of the residence may state that the defendant shall not enter the residence unless: (1) in the presence of a police officer or another individual named by the court, and (2) the plaintiff's permission has been given. Thus, even if the defendant claims he was invited to return, his or her return is unlawful without a police officer or other person designated by the court. Subdivision (f)(3) contains all new language. It requires that each final order (i.e., an order other than an ex parte order) state that the defendant's presence on the premises with permission of the plaintiff does not invalidate the order. Note that final orders do not contain the statement authorized for placement in ex parte orders that in cases in which sole possession of the premises has been awarded to plaintiff the defendant cannot re-enter without both the plaintiff's permission and the presence of a law enforcement officer or the designated third person. Thus, a defendant's presence, with the plaintiff's permission, would not constitute a violation of the order--but any other act in violation of the order would still subject the offender to arrest or other enforcement action. This language is added because some law enforcement officers have hesitated or refused to enforce orders which they believe were invalidated by the plaintiff by allegedly inviting the defendant to visit the plaintiff's premises. The same subdivision also is amended to authorize the court, in the order issued at the ten-day hearing, to address problems which often arise around the issue of contact between the noncustodial parent and the children. These contacts, by their nature, create additional opportunities for abuse. The court is authorized to weigh the best interests of the child--whether that includes continuation of contact with the noncustodial parent, or avoidance of contact with an abusive noncustodial parent--as well as the plaintiff's right to be free from abuse. Conditions imposed may include requirements of supervised or restricted visitation, transportation, telephone calls or any other area of potential harm to the parent or the child. In relationships subject to this rule, it has not been uncommon for noncustodial parents to make arrangements for visitation and then fail to appear for the visit at the appointed time and place. To avoid resulting disappointment to the child, and use of court-ordered visitation as another means of harassing the custodial parent, this subdivision requires that each order warn the defendant that failure to notify the custodial parent that parental contact will not take place as scheduled will constitute grounds for amendment of the parental contact provisions of the order. Note that, in addition to the authority set forth in the rule, the trial courts possess statutory authority to tailor their orders to the facts at hand in order to protect the plaintiff both from abuse and from interference with the plaintiff's “personal liberty.” See 15 V.S.A. §§ 1103, 1104. The blank abuse prevention orders printed and distributed to clerks' offices by the Court Administrator's Office are being amended, at the suggestion of the Advisory Committee on Rules for Family Proceedings, to ensure that trial judges specifically consider a full range of restrictions on the defendant in order to accomplish this goal. For example, an order barring a defendant from appearing within 1000 feet of a plaintiff's residence may be more effective in protecting the plaintiff and her personal liberty than an order that the defendant not enter the premises; violation of a 1000-foot order, unlike a nonentry order, may be reported to the police before it is too late to telephone the police for effective protection of the plaintiff and actual physical protection. Subdivision (g), on motions to modify ex parte orders, is amended. The new language requires the clerk to attach copies of the defendant's pleadings to any written notice of hearing. If notice is oral, the clerk must orally inform the plaintiff that the pleadings are available at the clerk's office. If notice is oral, the hearing cannot be held sooner than 48 hours after the notice has been provided. Subdivision (h), on continuances to respond to entries of appearance of counsel, contains the substantive guarantee of a notice sufficient to allow the other party to retain counsel, discussed above. The rule also is clarified to state that this protection applies to any hearing and any party under the rule, and that the party who received inadequate notice or the court itself can trigger the rule's requirement of a continuance. Commentary The Court Administrator and Administrative Judge have adopted new forms for use in relief from abuse cases. These forms are designed to be more easily understood. Input was solicited from various participants in the system, including members of law enforcement, the domestic violence community, judges, court managers and court staff. An amendment to Rule 9 was necessitated because the prior rule designated specific language to be included on the forms, some of which was cumbersome and confusing. For example, former Rule 9(f)(3) required the following phrase: “Defendant's presence on the premises with permission of the plaintiff does not invalidate this order.” On the Final Order form, that sentence does not appear. Rather, language that provides better information and that more clearly alerts defendant to potential problems is included. Specifically the formerly required language has been replaced on the form with the following: “No action or behavior of Plaintiff can amend or revoke this Order. Only the court can amend or revoke this Order.” Additional warnings have also been added to the form. In orders prescribing a schedule for parental contact former Rule 9(f)(3) required the phrase: “Failure to notify the custodial parent that parental contact will not take place as scheduled may constitute grounds for amendment of the parental contact provisions.” That sentence has been removed from the Final Order form. A relief from abuse order is, “issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person, ...” 15 V.S.A. § 1101(5). The previously required phrase is not relevant to the nature of this order. When there are children involved and parental rights and responsibilities at issue, the court will address such issues with greater specificity and finality in the companion parentage or divorce case. Inconsistent and inconsiderate non-custodial parents may indeed see their visitation rights altered through such behavior, but in a relief from abuse order such attempt to warn irresponsible parents is unnecessary. Of course, language that is required by statute to be included on the form remains in place. See 15 V.S.A. 1103(i) and 1104(d). The Court finds that this amendment must be promulgated without resort to the notice and comment procedures set forth in Administrative Order No. 11 in order to eliminate the mandated required language to permit the utilization of new forms that have been created by the Court Administrator and the Administrative Judge. However, the Advisory Committee on Rules for Family Proceedings is directed to consider and report to the Court by June 1, 2002, pursuant to Administrative Order No. 11, on any comments that may be received on this emergency promulgation.