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.

Can My Spouse Take My Children Away from Me?

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 custody and physical custody of children are 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.[2] 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.

[1] Mass. Gen. Laws ch. 208 s. 31

[2] Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985)

[3] See King v. DeManneville, 5 East. 221, 102 Eng.Rep. 1054 (Kings Bench, 1804).

[4] Haskell v. Haskell, 152 Mass. 16, 24 N.E. 859 (1890).

Harassment Orders in the Commonwealth of Massachusetts

The following is a test. It’s of particular interest if you are a divorce lawyer, family law attorney, party seeking a protection order, or party against whom one is sought. Which of these scenarios might be appropriate for an order of protection from harassment, also known as a 258E or harassment orders?

  1. Last night, Alma’s estranged husband broke into her home and forced her to have sex with him.
  2. 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.
  3. 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.
  4. All of the above.

The answer, of course, is 4. Whether you’re a lawyer or party, understanding this law could mean the difference between an order issuing. 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.” [1]

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.[2]

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.” [3]

Should you have any questions about protective orders or other issues of domestic relations and family law, call our offices to schedule a free consultation.

[1] Mass. Gen. Laws ch. 258E, s. 1.

[2] Mass. Gen. Laws ch. 258E, s. 3

[3] Mass. Gen. Laws ch. 265, s. 43