STATE v. FERNANDO A., SC 18045/18103

Judicial District of Stamford at G.A. 1

 Criminal; Domestic Violence; Due Process; Whether the Defendant was Entitled to an Evidentiary Hearing in Connection with a General Statutes § 54-63c Protective Order.  The defendant was arrested and charged with domestic violence based on a complaint to the police filed by his wife.  Pursuant to the provisions of General Statutes § 54-63c, as amended by Public Act 07-123, the police released the defendant on the conditions that he not enter the family home and that he avoid all contact with his wife.  Section 54-63c, as amended, provides that such a protective order will remain in effect until the arrested person is presented to the Superior Court for arraignment and that, at the arraignment, "the court shall conduct a hearing pursuant to section 46b-38c at which the defendant is entitled to be heard with respect to the issuance of a protective order."  When the defendant requested an evidentiary hearing concerning the validity of the protective order at his arraignment, the court indicated that no evidentiary hearing would be held that day due to the crowded docket but that a hearing would be held four days later.  The court then entered a protective order which, among other things, prohibited the defendant from entering the family home or coming within 100 yards of his wife.  The court also directed that the order extend to the defendant's minor children, with the condition that the defendant be allowed third party visitation with them.  When the defendant appeared before another judge four days later, the court ruled that he had been "heard" for purposes of § 54-63c and that he was not entitled to an evidentiary hearing on the protective order.  The defendant appeals pursuant to General Statutes § 52-265a, claiming that Connecticut's statutory scheme governing the issuance of domestic violence protective orders requires that an evidentiary hearing be conducted under the circumstances of this case.  The defendant also argues that as the protective order deprived him of fundamental rights, including the right to occupy his home and the right to the custody and companionship of his children, constitutional guarantees of due process demand that he be afforded an evidentiary hearing concerning the protective order.