80 [83 Op. Att’y

FAMILY LAW

DOMESTIC VIOLENCE ) COURTS AND JUDGES ) USE OF

FORCE TO RETURN CHILD KEPT IN VIOLATION OF

CUSTODY ORDER

January 28, 1998

Tracy A. Gilmore, Esquire

Deputy State’s Attorney for Carroll County

You have requested our opinion on the meaning of the phrase

“reasonable and necessary force,” as used in the portion of the

domestic violence protective order form that calls on law

enforcement officers to return to the custodial parent a child kept in

violation of the order. Your question requires us to consider a

predicate issue: whether this provision in the protective order form

is authorized by law.

Our opinion is that current law does not authorize an order to

law enforcement officers to forcibly return a minor child to the

custodial parent. In light of this conclusion, we need not address the

meaning of the phrase “reasonable and necessary force.”

I

Scope of Protective Order

Under §4-506(d)(6) of the Family Law (“FL”) Article,

Maryland Code, a protective order in a domestic violence case may

“award temporary custody of a minor child of the respondent and a

person eligible for relief.” The standard protective order form used

in the courts, Form DV-3, reflects this grant of authority by

including a paragraph 7, in which the court orders “that custody of

_______ is awarded to _________.”
Gen. 80] 81

Although the focus of your inquiry is the protective order form,

1

DV-3, the same language appears in Form DV-2, “Ex Parte Order for

Protection from Abuse,” which implements FL §4-505. Our analysis and

conclusion are the same concerning this element of the ex parte order

form.

The phrase “compel compliance” evidently refers to the authority 2

of a court to confine a person who has committed civil contempt until the

individual has purged the contempt through compliance with the order.

“The [civil] contempt power is a tool available to a court to compel a

person to act or not to act in a specified manner.” Droney v. Droney, 102

Md. App. 672, 683, 651 A.2d 415 (1995). See, e.g., State v. Roll & Scholl,

267 Md. 714, 728, 298 A.2d 867 (1973).

 This opinion is not an occasion to discuss the substance or 3

(continued...)

Your question focuses on language that immediately follows

the portion of paragraph 7 awarding custody. The form order

includes a box that the judge may check for the purpose of including

the following provision: “Law enforcement officers are ordered to

use all reasonable and necessary force to return the minor child(ren)

to the custodial parent at time of service or as soon a possible after

entry of this Order.” Nothing in FL Title 4, Subtitle 5, on domestic 1

violence, expressly authorizes this provision. 

II

Analysis

Courts have inherent authority to punish for contempt a person

who has knowingly violated a court order. See, e.g., Hitzelberger v.

State, 173 Md. 435, 196 A. 288 (1938). This inherent authority is

reflected in §1-202(a) of the Courts and Judicial Proceedings

Article: “A court may exercise the power to punish contempt of

court or to compel compliance with its commands in the manner

prescribed by the Maryland Rules or Maryland District Rules.”2

Moreover, FL §4-508 explicitly directs that domestic violence court

orders “shall state that a violation of the order may result in ... a

finding of contempt.” Therefore, violation of the custody portion of

a domestic violence protective order subjects the violator to the

sanction of contempt.3
82 [83 Op. Att’y

 (...continued) 3

procedure of the law of contempt. See generally Title 15, Chapter 200 of

the Maryland Rules.

 The language is as follows: “A person who fails to comply with 4

the relief granted in ... a protective order under §4-506(d)(1), (2), (3), (4),

or (5) of this subtitle is guilty of a misdemeanor and on conviction is

subject, for each offense, to a fine not exceeding $500 or imprisonment

not exceeding 90 days or both.” This criminal sanction does not extend

to failure to comply with relief granted under FL §4-506(d)(6), which

authorizes the award of temporary custody of a minor child.

 This opinion does not address the circumstances under which a 5

child might be removed from a household during an investigation of child

abuse or neglect. See FL §5-709.

In addition to contempt, violation of a court order may result

in consequences specified by statute. Indeed, the domestic violence

subtitle specifies certain consequences for violation of a protective

order. FL §4-509(a) creates a misdemeanor offense for certain

violations. FL §4-509(b) states that violation of a protective order 4

may subject the violator to arrest: “An officer shall arrest with or

without a warrant and take into custody a person whom the officer

has probable cause to believe is in violation of an ex parte order or

protective order in effect at the time of the violation.” FL §4-508

requires language in the order “that a violation of the order may

result in ... criminal prosecution ... and ... imprisonment or fine or

both.”

Nowhere in the domestic violence subtitle, however, has the

General Assembly authorized the forcible taking of a child from the

physical custody of someone alleged to have violated an order about

custody. By contrast, in another common type of case, the General 5

Assembly has explicitly authorized direct, forcible remedial action

in furtherance of a court order: A court is empowered under certain

circumstances to “issue an order authorizing [an] officer to enter the

premises by force” to levy goods in an action of distress. §8-317 of

the Real Property Article. There is no statutory counterpart here,

and, without it, we discern no basis for the court’s authority to order

the forcible taking of a child.

Because current law does not authorize the language found

after the check box in paragraph 7 of the protective order form, we
Gen. 80] 83

recommend that the courts reconsider inclusion of this provision.

Alternatively, of course, the General Assembly might be asked to

authorize the provision. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions and Advice

Editor’s Note:

The question originally posed in this opinion was later

addressed in 84 Opinions of the Attorney General 105 (1999).