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.”
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Many divorcing couples have been there…arguments get heated, regrettable words are spoken, and one (or both) of the spouses threatens the unthinkable: to “take the kids away” from the other parent.
Legal and physical custody of children is at issue here. While the term physical custody refers to the child living or staying with one or both parents, the term legal custody denotes the parent’s ability to make lasting legal decisions on the child’s behalf. Physical custody refers to the child’s primary residence and the parent’s ability to make day-to-day decisions. Legal custody, on the other hand, refers to the parent’s involvement in “decisions regarding the child’s welfare in matters of education, medical care, emotional, moral and religious development.”
During the divorce proceedings, it is recognized in Massachusetts that both parents have a right to temporary legal custody. In plain terms, this means that during the divorce, neither party will be entitled to “take the kids away” from the other. (Some important exceptions to note here: the court may order sole temporary custody in the event of abuse, neglect, or emergency conditions.)
In determining custody matters for a final court order on the merits of the case, however, there is no presumption for either shared or sole custody by the courts. If custody is contested by one or both parents, the parties will need to submit to the court their plans regarding the following:
- the child’s education;
- the child’s health care;
- procedures for resolving disputes between the parties with respect to child-raising decisions and duties;
- and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations.
The court will review the custody implementation plans submitted by the parties. The court may accept the plans, modify the plans and issue a joint custody plan, or order a plan for sole custody to one of the parents.
Joint legal custody is not necessarily presumed to be the best choice, either, as the Massachusetts Supreme Judicial Court has noted in the case of Yannas v. Frondistou-Yannas. In that case, a father appealed a judgment which granted primary physical custody of his minor children to the mother, granted joint legal custody to both parents, and authorized the mother to take the children to Greece to live there. The father argued that Massachusetts supports a presumption of joint legal custody, and that joint custody is also required by the U.S. Constitution. The Court disagreed. “There is no apparent reason to believe that joint physical custody is presumptively preferable in all child custody disputes. The matter of physical custody is appropriately left to the judge for determination unfettered by any presumption in favor of joint physical custody. There is also no reason to conclude, as the husband suggests, that joint physical custody is required by constitutional principles of right-to-privacy or due process of law or that a “clear and convincing” standard of proof should be imposed on anyone seeking custody other than joint physical custody.”
It is important to note that, contrary to popular belief, there is no “preferred parent” by the Massachusetts Probate and Family Courts. Absent any misconduct, the rights of the parents are held equal by the courts. A parent is not automatically preferred to receive custody of the children because of his or her gender; in fact, the Massachusetts courts have long done away with the common law presumption that a father was entitled to the care and custody of his children in the event of a divorce. (Under English common law, that was the case. Massachusetts, however, has rebutted this idea as early as 1890. Likewise, mothers are not presumed to become the primary caregiver of a child simply by way of being mothers.
So, if neither sole custody nor shared custody is preferred, then how does the court decide? In order to resolve issues of custody, the court will determine what is in the best interests of the child. The court does not look at the interests of the parents, the “rights” of the parents, the preferences of the parents, or even the relative morality or lifestyles of the parents—unless it affects the welfare and best interests of the child. In determining what is in the best interests of the child, the court considers many factors. Some examples:
- Has one parent acted as the primary caregiver to the child in the past?
- What are the needs of the child, and in what ways will each parent be able to care for the child and meet those needs?
- Is there a history of abuse by either parent?
- Is there a history of alcohol or substance abuse by either parent?
- Has either party ever deserted the child?
- Do the parents have a history of being able and willing to cooperate in matters related to child-rearing?
If your spouse is threatening to “take away your children,” or you are facing custody matters, it is imperative that you discuss the unique facts involved in your family’s matter with a knowledgeable family law attorney. To schedule a free consultation with our office, call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.
 Mass. Gen. Laws ch. 208 s. 31
 Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985)
 See King v. DeManneville, 5 East. 221, 102 Eng.Rep. 1054 (Kings Bench, 1804).
 Haskell v. Haskell, 152 Mass. 16, 24 N.E. 859 (1890).
The following is a test. Which of these scenarios might be appropriate for an order of protection from harassment, also known as a 258E or harassment orders?
- Last night, Alma’s estranged husband broke into her home and forced her to have sex with him.
- Bob and his girlfriend (and the mother of his two children) have just gone through an ugly break-up. Bob’s girlfriend has, on three occasions, left threatening notes on Bob’s windshield, slashed his tires, and scratched his car.
- Cal has had two dates with Dave. After Cal turned Dave down for a third date, Dave texted him three times today, threatening to kill him.
- All of the above.
The answer, of course, is D. Massachusetts defines harassment as “(i) three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.” 
Under Chapter 258E of the Massachusetts General Laws, any party may seek a harassment order against another party; unlike a temporary order of protection from abuse, it is not necessary that domestic violence or abuse be in the picture. The plaintiff may file a Complaint to begin the procedure for obtaining a harassment order. There is no filing fee associated with this Complaint. Complaints seeking harassment orders might ask the Court to order the Defendant to do the following:
- (i) refrain from abusing or harassing the plaintiff, whether the defendant is an adult or minor;
- (ii) refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or minor;
- (iii) remain away from the plaintiffs household or workplace, whether the defendant is an adult or minor; and
- (iv) pay the plaintiff monetary compensation for the losses suffered as a direct result of the harassment; provided, however, that compensatory damages shall include, but shall not be limited to, loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement of locks, medical expenses, cost for obtaining an unlisted phone number and reasonable attorney’s fees.
In deciding whether to grant the order, the Court considers whether there is a substantial likelihood of harm posed to the plaintiff. The order may be granted temporarily; it may then be extended for a period of time deemed necessary to protect the plaintiff from harassment. In addition to the foregoing, the law also provides some guidelines for police officers, requiring them to use all reasonable means to prevent further abuse and harassment.
It is important to note that Chapter 258E orders are civil in nature. The criminal harassment statute of Massachusetts provides: “Whoever (1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury, shall be guilty of the crime of stalking and shall be punished by imprisonment in the state prison for not more than 5 years or by a fine of not more than $1,000, or imprisonment in the house of correction for not more than 2 ½ years or by both such fine and imprisonment.” 
 Mass. Gen. Laws ch. 258E, s. 1.
 Mass. Gen. Laws ch. 258E, s. 3
 Mass. Gen. Laws ch. 265, s. 43