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.

Protections of the Anti-SLAPP Statute Apply to Recipients of Restraining Orders

Is the recipient of a restraining order protected by the anti-SLAPP statute when she contacts police to report her concern that the restraining order has been violated? What if it turns out that there was no violation, and charges were filed erroneously and later dismissed? In a recent case, the Massachusetts Appeals Court decided this issue.

In 1997, a few years after obtaining a divorce, the ex-wife sought and received a restraining order against her ex-husband. The ex-husband was prohibited from contacting the ex-wife in any manner, with an exception carved out for notifications of court proceedings by mail, by sheriff, or through other means. The ex-husband unsuccessfully sought to have that order modified or vacated on several occasions. In 2014, the ex-wife reported to the New Bedford police that the ex-husband contacted her by mail in violation of the restraining order. Upon investigating, New Bedford police arrested the ex-husband, and he was charged with criminally violating the order.

The charges were later dismissed, as the court found no evidence that the restraining order was violated. The ex-husband defended by noting that his mailing to the ex-wife (the mailing which was the basis of the purported violation) actually contained court filings, which were covered under the exception to the restraining order. The ex-wife noted that the court filings bore no official court stamp; by contrast, all other filings previously filed by the ex-husband had born a court stamp. The ex-wife called the court to confirm that the filings were official and was told by the clerk that no such filings existed. The investigating officer also called and was told the same thing.

As it turned out, the ex-husband did file those papers with the court, and the filings were misplaced by court personnel and not docketed until after these events transpired. As a result, the criminal charges were filed when no violation could be proven.

After the dismissal of the criminal charges, the ex-husband in turn filed a civil action against the ex-wife, claiming that she caused him to be arrested without probable cause. The ex-wife filed a motion to dismiss under the Massachusetts anti-SLAPP statute, claiming that the lawsuit was based entirely on her protected petitioning activity.

The Massachusetts anti-SLAPP statute provides a special motion to dismiss for parties who face a lawsuit based on their protected petitioning activities. “When a person reports suspected criminal activity to the police, she is engaging in constitutionally-based petitioning activity for purposes of [the anti-SLAPP statute,]” the Court explained. In this case, the ex-wife’s activities in reporting the suspected criminal activity to police was protected.

“[W]e conclude that [the ex-wife’s] conduct in reporting her concern to the police was petitioning activity under the anti-SLAPP statute and, in the circumstances of this case, the retaliatory civil suit filed against her was based entirely on her petitioning activity and therefore should have been dismissed.”

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 our experienced family law attorneys will get back to you at the earliest opportunity.

Divorce on Grounds of Cruel and Abusive Treatment

Which of the following scenarios may give rise to a divorce based on the fault ground of cruel and abusive treatment:

1. A husband publicly makes false accusations that his wife is having multiple affairs with her medical patients; he once threatened to slash her.

2. A wife calls her husband vile names and berates him in front of their children; she has also blackened his eye on two occasions.

3. A husband forces himself upon his wife and has sex with her, despite knowing that he has a sexually transmitted disease.

4. A wife forces her wife to sleep alone in the attic, orders her to leave the marital home, and slaps her multiple times on multiple occasions.

The answer? All of the above!

Cruel and abusive treatment is a fault ground for divorce in Massachusetts, along with many other jurisdictions. It has been defined by the Massachusetts courts to mean “that it must ‘appear to be, at least, such cruelty as shall cause injury to life, limb or health, or create a danger of such injury, or a reasonable apprehension of such danger upon the parties continuing to live together. This is broad enough to include mere words, if they create a reasonable apprehension of personal violence, or tend to would the feelings to such a degree as to affect the health of the party, or create a reasonable apprehension that it may be affected.’”

As noted above, cruel and abusive treatment includes words as well as physical actions, provided that those words either create an apprehension or fear of violence, or hurt a spouse to such extent that the spouse’s health is reasonably affected. As the Supreme Judicial Court explained in one case: “acts or words are sufficient to constitute cruel and abusive treatment within the purview of R. L. c. 152, § 1, now G. L. c. 208 § 1, where the acts are committed or the words are spoken with a malevolent motive, or intention to injure, or to cause suffering to the libelant, if it is found that injury or the danger of injury to the libelant’s life, limb or health, or a reasonable apprehension thereof, is thereby caused.” In that case, the wife claimed to suffer serious mental suffering (so much so that her physical health was impacted) after she learned of her husband’s infatuation with another woman and his intentions to continue his relations with the other woman.

The defendant’s “malevolent intent” or the intent to hurt, is required to prove cruel and abusive treatment. From case law, it seems debatable whether one instance of cruelty is enough to prove cruel and abusive treatment, or whether ongoing cruelty is necessary: while some cases have granted a divorce based on this ground involving only one major incident, others have declined to do so.

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 we will get back to you at our earliest opportunity.

[1] Brown v. Brown, 323 Mass. 332 (1948), quoting Bailey v. Bailey, 97 Mass. 373 (1867).

[2] Curtiss v. Curtiss, 243 Mass. 51 (1922).

[3] See, for example, Collis v. Collis, 355 Mass. 25 (1968); Mooney v. Mooney, 317 Mass. 433 (1944); and Sylvester v. Sylvester, 330 Mass. 397 (1953).