New Case Law Addresses Ex Parte Protective Order

A protective order, sometimes also referred to as a restraining order, serves to protect a victim of domestic abuse which is perpetrated by a member or former member of the victim’s household. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is or was dating.

The recent case of G.B. v. C.A. involved veracious protective order requests against a defendant who was a Boston police officer. In that case, the parties were in a dating relationship for three years. The day after the relationship ended, the defendant appeared at the plaintiff’s workplace and attempted to return ceramic flowers to her. A struggle ensued, and the video of the struggle was captured by surveillance cameras from two different angles. The video showed that the plaintiff threw the flowers in the trash; the defendant retrieved them; and the plaintiff then lunged at the defendant, pointing long fingernails at his face. As the parties struggled, they went off camera for some time, and the plaintiff eventually landed on the ground and injured her face and lip.

The plaintiff attempted to call the police, and the defendant tried to take her cell phone away from her, boxing her into a corner. When a 911 operator called back, the defendant answered the plaintiff’s phone. He then walked across the street to a police station, and officers came on the scene and transported the plaintiff to a hospital for treatment.

The following day, the parties appeared in court, each seeking a protective order against the other. The judge viewed the video recording of the struggle between the parties and declined to grant either party’s request. Subsequently, the matter was investigated by Boston Police Department’s domestic violence unit, which eventually filed criminal charges against the plaintiff. The defendant was not charged, though the matter was also referred to the BPD’s Internal Affairs division.

About six weeks later, the plaintiff filed for another protective order against the defendant, alleging that he followed her in his car, intimidated her, and had a friend call her and threaten her not to go to court. The following month, a clerk magistrate heard the criminal charges against the plaintiff. The clerk held the application “in abeyance” for sixty days, told the parties to stay away from each other, and noted and that, if there were no further incidents, the criminal complaint would be dismissed.

Subsequently, the plaintiff filed for another protective order, alleging that the defendant followed her, carried a gun, and drove by her work, that he had contacted her on an Internet application called “WhatsApp,” and that he “went to Housing to try to tell lies.” A third judge denied the request.

The plaintiff filed for a protective order for the fourth time, about a month later. This time, because the plaintiff had moved, she was referred to a different court for her filing. The plaintiff recounted the original altercation, indicating that the defendant grabbed her, struck her in the face, pushed her, and slammed her against the ground. She also stated that she was “tired of being afraid” of the defendant and claimed that two different judges on two different dates ordered the defendant to stay away from her, not to drive by her job, and not to contact her in any way, and that he had violated those orders on five separate dates.

The fourth judge granted the protective order ex parte, then scheduled the matter for further hearing. Another judge heard the matter and extended the protective order for a year. The defendant appealed, claiming that the judge abused his discretion in granting the order. The defendant argued that the plaintiff failed to prove, by a preponderance of the evidence, that she suffered abuse, and that the only “new” evidence presented by the plaintiff in support of the request was an incident where the defendant drove by the plaintiff’s workplace.

The Appeals Court disagreed with the defendant, holding that the trial judge was within his discretion to find for the plaintiff, based on the totality of the circumstances. The court explained that “it was ultimately up to the judge to determine the credibility of the witnesses. He could have believed her version of events, or not. Indeed, he would have been within his discretion in finding that the plaintiff was the initial aggressor in the December, 2015, incident, or that it involved mutual combat. Neither finding, however, would negate the further discretion afforded the judge to consider this incident in the totality of the circumstances surrounding the request for the 209A order at issue in this case.”

If you need assistance with a restraining order or have any questions about divorce or family law issues, you may schedule a free consultation with our experienced attorneys. Call 978-225-9030 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.

Best Practices for Working with a Guardian ad Litem

In some cases, a Guardian ad Litem’s services are a key component.

Imagine the following scenario: a ten-year old child named Jacob is diagnosed with a “curable” form of cancer. If Jacob is brought to a hospital for regular chemotherapy treatments, then Jacob has a chance to beat the disease and live a healthy and stable life. Jacob’s parents, however, are devoutly religious people with the deeply held belief that God and prayer are the only acceptable ways for their child to be cured of cancer. The parents believe that if Jacob is meant to be cured, then God will provide for the cure. As such, Jacob’s parents are refusing any medical treatment for Jacob.

This scenario might trigger a court case, one in which the state of Massachusetts has a special interest in advocating on behalf of Jacob to ensure that he has a chance to beat his disease, even against the wishes of his religious parents.

If a Justice of the Massachusetts Probate and Family Court appoints a Guardian ad Litem to the case involving Jacob, the Guardian must be impartial. He or she investigates or evaluates the family and has a duty to investigate the family’s situation. This investigation may include interviews with Jacob and his parents and home visits. After reviewing the family circumstances, the Guardian ad Litem creates a detailed report to file with the court. The person does not take sides and is supposed to be an impartial third party.

When working with a Guardian ad Litem, it is important to remember certain best practices. First, it is necessary to know that the Guardian ad Litem is not your attorney, and anything that you share with him or her may be reported to the Justice in your case. The person does not need to keep any confidential information that you may believe you are sharing in confidence.

Second, it is also important to remember that you must provide the Guardian ad Litem with accurate information and to share with the Guardian ad Litem any information about other people who may have information in support of your case.

Third, it is important to remember that depending on the circumstances of your case, the investigation or evaluation process with a Guardian ad Litem may take several months. Because the process may be long, it is wise to keep written documentation about what you want to share with the person; what you have shared with the person; when and for how long you spoke with the Guardian ad Litem; and any other information that you think would benefit your case. When you speak with the Guardian ad Litem, you should create a summary or bulleted list of important points that you wish to share, so that you stay focused with your thoughts.

Another item to consider is that there may be a cost associated with the Guardian ad Litem process, which you may be required to pay. Also remember: because the Guardian ad Litem is an impartial person, he or she may seem distant or highly questioning of you. This does not mean that he or she does not believe you or what you’re saying, but rather, it means that he or she is performing his or her due diligence in remaining impartial for the report to be given to the Family Court Justice.

Encourage those with whom you know the Guardian ad Litem will be speak to remain truthful. Provide factual information requested by the Guardian ad Litem, but be sure to speak with your attorney and not the Guardian ad Litem about facts that may or may not hurt your case. If the Guardian ad Litem requests that you sign consent forms to obtain confidential information from professionals, be sure to speak with your attorney before you sign any documentation. After the report is created, you have a right to read the final report. You may not copy the report without permission from the Massachusetts Family Court Judge.

In the above case with Jacob, the Guardian ad Litem will present the facts of the family situation, but the Guardian ad Litem is not a legal advocate of Jacob. Although Massachusetts values religious freedom, this freedom is not limitless when the care of a child with a curable form of cancer is concerned. There are other circumstances when a Guardian ad Litem may be involved such as a divorce, separation, or other matters that affect children or the family unit.

If you are seeking a competent family law or child law lawyer or domestic relations attorney, please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission promptly, and you may schedule a free consultation with us.

Protective Order Issued Ex Parte: New Massachusetts Case Law

The recent case of C.R.S. v. J.M.S. addressed the issue of an ex parte abuse protective order. In that case, the victim of domestic violence filed a complaint for a restraining order against her partner. Her story entailed many instances of controlling behavior, along with some instances of physical violence.

As we explained in previous blog posts, one particular recourse for victims of domestic violence is to seek a protective order in court under Massachusetts General Laws chapter 209A. Restraining orders in general are ways for the court to compel a defendant to stop doing something. A protective order, sometimes also referred to as a restraining order, serves to protect a victim of domestic abuse, which is perpetrated by a member or former member of the victim’s household. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is/was dating.

In addition, under Chapter 258E of the Massachusetts General Laws, any party may seek a protective order against another party based on harassment. Unlike a temporary order of protection from abuse, it is not necessary that domestic violence or abuse be in the picture.

In the case at hand, the District Court issued an emergency protective order for the plaintiff. The order was issued ex parte, meaning without the presence of the defendant. The injunction ordered the defendant to stay away from the plaintiff, not to contact her, and to vacate the plaintiff’s home.

Two days later, following the defendant’s arraignment for a criminal charge related to the domestic incident, another hearing was held by a different judge. Both the plaintiff and the defendant testified at the second hearing, and the defendant was represented by an attorney. The plaintiff described the abuse she endured from the defendant, including her recount of being pushed into a wall and pushed down on multiple occasions. The defendant denied the plaintiff’s allegations. After questioning the defendant, at the end of the hearing, the judge extended the order of abuse protection for one year.

The defendant appealed the injunction, claiming that the protective order should not have been extended, because his actions did not constitute “abuse” as defined by Massachusetts law. He also claimed that the plaintiff’s categorization of his actions as abusive was incorrect, and that the plaintiff’s claims of fear due to the defendant’s actions were “unreasonable.”

The Appeals Court held that there was no error in issuing the injunction. The trial judge did not err and could reasonably concur, based on circumstantial evidence, that the plaintiff has met her burden of proof.

“We are satisfied that the judge properly found that the plaintiff met her burden here,” the Court noted. “She testified to at least two separate incidents of physical assault (with one incident occurring at the time the ex parte order issued) in the course of a deteriorating and stressful relationship — a relationship that she testified had been characterized by the defendant’s controlling behavior as well as verbal and emotional abuse. At the time of the hearing, it appeared that the relationship was ending and the defendant was drinking heavily.”

The defendant also argued that the original ex parte order was wrongfully issued, claiming that he was entitled to an opportunity to appeal that order. The Appeals Court disagreed. “Simply put, a defendant is entitled to be heard on the issue of whether an order pursuant to G. L. c. 209A should have issued, and a defendant has the right to appeal the issuance of an order against him or her. However, a defendant is not entitled to relitigate each stage of the proceedings,” the Court held. “Here, the defendant was given notice of the extension hearing, which was held two days after the ex parte order issued and, represented by counsel, he was given an opportunity to oppose the extension of the ex parte order. He is not entitled to further review of the ex parte order in this court.”

If you need assistance with a restraining order or have any questions about divorce or family law issues, you may schedule a free consultation with our experienced attorneys. Call 978-225-9030 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.

Visitation Options in Cases of Domestic Violence

Matt and Mary are going through a divorce. Matt alleges that during the marriage, Mary had engaged in a repeated pattern of physical and verbal abuse toward him. The couple had two children together, and the children live with Matt. Both parties want to know whether Mary may have visitation rights with the children.

In other words, the issue is as follows: would a Massachusetts judge allow the person with a history of physical and verbal abuse to have visitation with his or her children?

In Massachusetts, the rights of the parents to have custody of their minor children are generally equal.[1] Courts are concerned with the happiness and welfare of the child, including understanding the ways in which the child’s present or past living conditions affect the child’s physical, mental, moral, or emotional health. Id.

This right is not all-encompassing, however. Massachusetts courts may require that a parent have supervised visitation with children. Supervised visitation means that a “third party is present during the visits to ensure that the child is safe and that the visiting parent acts appropriately.”[2] There are many instances where supervised visitation is appropriate, including “when the visiting parent has a history of abuse toward that child or another child” or “when the visiting parent has a history of abuse toward the other parent.”[3]

As another consideration, an abused parent may continue to suffer abuse by the other parent. In this circumstance, the victim may obtain a restraining order under chapter 209A of the Massachusetts General Laws.[4] A 209A order requests that a Massachusetts judge order that the victim be given custody of the children, but this is rebuttable.

Moreover, the Supreme Judicial Court has held that “where there has been domestic violence between parties, judges must consider the effects that this violence has had on the child before making a decision about custody” and that physical violence is a violation of a basic human right, that is, to live in physical security.[5]

If a parent with custody of children believes that the children are at risk of abuse during visitation, the parent with custody may petition the court to end the visits between the children and the abuser and demonstrate that the visits are not in the best interest of the children.[6] If the parent with custody is at risk of harm, but the children are safe, the parent with custody may seek an order for a supervised exchange of the children.[7]

If you or your child(ren) are in serious or immediate physical danger, you should contact emergency personnel. You may wish to speak with an attorney with competence in this area of the law, and you may schedule a free consultation with our firm. Family law, domestic violence law, intimate partner violence law, and child law are intricate facets of the legal system and your family dynamics. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

[1] Mass. Gen. Laws. ch. 208 § 31

[2] Family Law Advocacy for Low and Moderate Income Litigants, 2nd Edition, 2008 >https://www.masslegalservices.org/system/files/library/Chapter+09+Final.pdf<

[3] Id.

[4] Id. at 249

[5] Id. at 254 (citing to Custody of Vaughn, 422 Mass. 590, 595 (1996))

[6] Family Law Advocacy for Low and Moderate Income Litigants, 2nd Edition, 2008 >https://www.masslegalservices.org/system/files/library/Chapter+09+Final.pdf< (citing to Donnelly v. Donnelly, 4 Mass. App. Ct. 162 (1976))

[7] Id.

What Constitutes Domestic Abuse in Massachusetts?

According to the applicable statute, domestic abuse is defined in Massachusetts to include three different types of actions. 1

First, attempting to cause or causing physical harm constitutes domestic abuse. Actions such as punching, hitting, or kicking another family or household member may be examples of this part of the definition.

Second, placing another in fear of imminent serious physical harm also constitutes domestic abuse. Threatening to hurt another family or household member is an example of this part of the definition.

Third, causing another to engage involuntarily in sexual relations by force, threat of force or duress also constitutes domestic abuse.

Who is Covered Under the Statute?

The Massachusetts domestic abuse statute applies to family or household members. The definition of “family and household members” is fairly broad. It is defined by the statute as persons who:

“(a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage;
(d) have a child in common regardless or whether they have ever married or lived together; or
(e) are or have been in a substantive dating or engagement relationship, which shall be adjudged by district, probate or Boston municipal courts in consideration of the following factors: (1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship.” 2

What Remedies are Available?

Under the statute, there are many different remedies that a judge may order once a victim of domestic violence files a complaint against the abuser in the appropriate court. For example:

• The court may issue a restraining order against abusing and/or contacting the victim;
• The court may compel the defendant to leave the household;
• The court may grant temporary custody of minor children to the plaintiff, and may also order payment of child support or spousal support by the defendant;
• The court may order the defendant to pay the victim monetary compensation for the losses suffered as a direct result of the abuse;
• The court may order the defendant to attend a recognized batterers’ training program.

Need More Information About Domestic Violence?

Consult our Protective Orders FAQ page. Also, the Massachusetts Courts’ web page on domestic abuse has many helpful resources. If you need further help, call our offices to schedule a free consultation with one of our experienced family law attorneys.

1 Mass. Gen. Laws c. 209A, s. 1.
2 Id., definitions.

Expunging a Protective Order: New Case Law

Once a protective order is issued, under what circumstances might that order be expunged by the court? This question was recently addressed by the Massachusetts Appeals Court.

The case of J.S.H. v. J.S. involved a protective order of harassment prevention which was issued under Massachusetts General Laws, chapter 258E. The plaintiff who sought the order was president of a religious non-profit organization which ran a support group for victims of domestic violence. The defendant was the husband of one of the women who attended the group. The plaintiff claimed in her supporting affidavit that the defendant wrote to board members of her organization, seeking to discredit her, and that he also sent her multiple harassing emails. No letters or emails were included with the plaintiff’s affidavit. The trial court granted an order of protection. Upon expiration of the order, the plaintiff sought to extend it, and she submitted copies of a letter and two emails which the defendant had sent to the organization’s board. The trial court declined to extend the order.

Nearly a year later, the defendant sought to expunge all evidence of the order of protection. The defendant claimed that the plaintiff had committed fraud on the court in obtaining the original protective order, because she indicated that he had sent her emails directly. The court declined to expunge the records, and on appeal, the Appeals Court agreed.

“Chapters 209A and 258E are particularly similar in their treatment of records following the issuance of an order, as well
as after an order is vacated. Under both statues, once a judge issues an order, the order and supporting papers are transmitted to the appropriate law enforcement agency,” the Court explained. Under both statues, once an order is vacated, the court sends written notification to the appropriate law enforcement agency directing it to destroy its records of the vacated order…However, there is no explicit statutory authority regarding the expungement of records of c. 209A or c. 258E orders from any Statewide registry maintained by the commissioner.”

In order for an expungement order to be appropriate, the Court noted, the petitioner must be able to prove that the original abuse protection order was obtained through fraud on the court. Citing a previous case precedent, the Court explained that “[a] ‘fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.”

In the case at hand, the Court said, nothing suggested that the plaintiff fabricated her story or was motivated by a deceptive scheme. Something more serious and egregious is required to find fraud on the court than stated in this case, the Court noted, affirming the decision not to expunge the records.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and one of our competent family law attorneys will get back to you at our earliest opportunity.