On August 22, 2007, the Supreme Court addressed the issue of whether allegations not raised in the domestic violence petition could be raised for the first time in a domestic violence hearing. In the case of Aldrich and Gauthier , the Supreme Court held that allegations not raised in the domestic violence petition are inadmissable.

In the case of Aldrich and Gauthier the victim filed a domestic violence petition against the defendant in the Littleton District Court. In her petition, the victim claimed that she was having “disputes” with the defendant's mother. The defendant's mother was not named as a party in the action.

At the trial, the victim testified that the defendant threatened to kill her if she ever tried to take away the couple's child. The defendant's attorney objected to this testimony arguing that the allegation of a death threat was never raised in the petition. The Littleton District Court overruled the objection and issue a domestic violence protective order.

On appeal the Supreme Court held that the victim was obligated to provide prior notice of the death threat, either in her petition for domestic violence or in a motion to amend her petition made prior to the hearing. Because the victim gave the defendant no notice of the alleged death threat prior to her testimony at the domestic violence hearing, the Supreme Court held that the district court erred in admitting that statement into evidence.

The Gauthier decision stands for the proposition that when a victim files a domestic violence petition, he or she must be very clear in stating the actions or conduct that they claim constitute domestic violence. If they forget to mention a key event in their petition, they must file a motion prior to the hearing to alert the court and defendant that they are going to be making additional allegations of domestic violence at the trial. If the victim fails to do either of these two actions, he or she will not be able to raise additional evidence at trial.

Andrew J. Piela is an associate attorney at Hamblett & Kerrigan, P.A. His legal practice includes civil litigation, family law, land use litigation and probate. You can reach Attorney Piela by e-mail at: apiela@hamker.com

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