Why it matters Where a Restraining Order Violation Happens

The Abuse Protection statute in Massachusetts M.G.L. c. 209A, often referred to as a restraining order, includes provision relating to out of state orders. Under section 5A, "any protection order issued by another jurisdiction, as defined in section one, shall be given full faith and credit throughout the commonwealth and enforced as if it were issued in the commonwealth for as long as the order is in effect in the issuing jurisdiction."

In a recent case, a Defendant raised on appeal the question of whose law applies when an out-of-state order is violated in Massachusetts: the law of the issuing state, or the law of the state where the order was violated?

In Commonwealth v. Shea SJC-11412 (2014), the defendant who lived in Weymouth applied for a restraining order in the Quincy District Court against the victim who already had a restraining order against the defendant in NH. This forced the victim to attend the hearing in Quincy District Court where, after having her request denied, the defendant violated the NH restraining order by threatening the victim. The Defendant was then arrested, charged and convicted with violating the NH restraining order in Massachusetts.

The defendant argues that NH law should have applied and that the jury instructions should therefore have been different, due to a requirement of "knowing" violation in the NH law. The SJC disagreed.

The SJC points out that the language of Section 5A states that the out-of state order should be enforced "as if it were issued in the commonwealth." In addition, the SJC quotes the federal Violence Against Women Act under which the enforcing state applies its own law to the violation of an out-of-state order.

In this case, the SJC's decision led to greater protections for the victim, but that might not be the case if a Massachusetts restraining order was being enforced in New Hampshire, or another state that has a different legal standard for violations.

Comments

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be...

New Massachusetts Child Support Guidelines (2021): Big Changes, Little Changes, Typos & some Unexpected Results

UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet . It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice. The 2021 Massachusetts Child Support Guidelines were recently posted. They take effect on October 4, 2021. If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of Divorce Mediation Training Associates and Skylark Law & Mediation, PC . For a full comparison of all the tracked changes between the 2018 and 2021 Massachusetts Ch...

2024 U.S. Presidential Party Platforms - What are the policy positions that could affect families?

While the laws that affect family formation, marriage and divorce are often made at the state level, there are also many policies and laws at the federal level that affect families and children. Just some examples from recent years that have impacted families in my mediation practice include changes to the federal tax laws (such as the elimination of the alimony tax deduction ) and U.S. Supreme Court rulings on same sex marriage and reproductive health rights. In just over a month, the United States presidential election will have a significant impact on these federal policies going forward, and could choose the next appointments to the U.S. Supreme Court as well. In 2016 and 2020 we shared what each presidential platform said about families and policy regarding family formation and dissolution, and below we'll provide you an update on the 2024 presidential platforms. As Maya Angelou said, "When someone shows you who they are, believe them the first time."...

Search This Blog