The Massachusetts Appeals Court published a decision today in a particularly saddening and difficult divorce case in which the lower court awarded custody to a father despite a finding that the father had been physically abusive to the mother.  The job of a trial Judge is not an enviable one and I don't intend to second-guess the decision which included weighing the testimony of two experts and was very fact specific. In reading the full decision it is obvious the court was forced to choose between two extremely undesirable results. The trial court relied on the children's problems with their mother and abuse between them and her in awarding primary custody to the father.  The Appeals Court points out that the GAL and children's therapists could not find any evidence that the father brainwashed or alienated the children from the mother.  However, the court acknowledged that the children witnessed abuse by the father against the mother, and pointed out the harm suffered...

In 1994, the United States Congress enacted the Violence Against Women Act, which was the first U.S. federal legislation criminalizing domestic violence and sexual assault, and assigned federal resources to combat violence against women on a community level.  It was reauthorized in 2000, and again in 2005 ( read the text of the 2005 version ).  The 2005 version which recently expired, also addressed dating violence and stalking, expanded services to include children and teenagers, and established funding for rape crisis centers. Since this legislation was recently allowed to expire by Congress, it's important that you know what we are losing and why it was allowed to expire.  If after reading about the benefits of this Act and the reasoning for letting it expire you think Congress made a mistake by not renewing the Violence Against Women Act, then we encourage you to contact your representatives and tell them your opinion. The Violence Against Women Act -...

On October 31, 2012, a new statute took effect in Massachusetts adding protection for domesticated animals in restraining order cases.  This does not mean that you can obtain a restraining order for your puppy from that feisty dog next door.  The new provisions only allow for a court order relating to the possession, care and protection of a pet when a temporary or permanent vacate, stay away, restraining or no contact order is already in effect or has been requested.   In simpler terms: this new law allows custody orders and protection orders for pets to protect them from the abusers of their human owners. So what do you do when your pet asks you how this new law affects them?  We've provided some helpful answers to make that conversation go more smoothly: "Super Awesome Best Friend, how can I help protect you from that angry guy?" "That's not something you have to worry about anymore.  The court provided me with an order that prevents him from co...

President Obama recently issued a Memorandum to the heads of the executive departments and agencies regarding Domestic Violence in the workplace.   The memo  requires the Office of Personnel Management to establish policies to better assist victims of domestic violence who are federal employees.  According to the memo, the CDC estimates that $8 billion dollars in productivity and health care costs are lost every year due to domestic violence.  This is in addition, of course, to the personal and family losses that are also caused by domestic violence. We often forget that the President is not just a political, foreign and domestic leader, but that he is also the C.E.O. of the federal executive branch, which, including the armed forces, employs more than 4 million american citizens.  Therefore, the policies of the president's administration on issues such as domestic violence affect a large percentage of the american workforce. Specifically, the memo r...

NBC Miami is reporting that a Judge in Florida has ordered a husband to take his wife on a date .  The Judge ruled that a fight between the couple over the man forgetting his wife's birthday did not result in serious enough violence to warrant further court action.  Although, the Judge indicated he would not normally treat domestic violence so light-heartedly he categorized the incident in this case as "very very minor".  The wife can be heard in the full video indicating that she wants her husband to come home. After inquiring of the wife what she likes to do and where she likes to eat, he ordered the husband to buy flowers, a card, get dressed up and take his wife to Red Lobster and bowling afterwards.  He was not ordered to let her win.  The Huffington Post's coverage of the order is available below:

As described in our previous post, Should my Child Support Change?, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances:  child custody and child support. The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. This means that if there is a change in circumstances which has caused your children to be put in an unsafe situation, you can bring that change to the court’s attention and potentially obtain a change in the custody and parenting plan orders.   If the change is an emergency situation, then you can request that the court immediately transfer custody or limit parenting rights by filing an Emergency Motion along with an Emergency Affi...

A colleague in California, Attorney Mark B. Baer, recently wrote a post discussing some horrific and recent tragedies of domestic violence that have occurred during the process of divorce or child custody court cases. Attorney Baer points out that our courts are not designed to deal with all of the emotions that come with a divorce, or a child custody dispute, and neither are most attorneys. Attorney Baer then posits a direct connection between these cases of violence in divorce or child custody disputes, and concludes that the family law system in the United States is to blame for that violence. We respectfully but strongly disagree. The frustrating delays and other inefficiencies of the court system are not the cause of domestic violence. Abusers, making their own choices, are the cause of domestic violence. The following response was written jointly by Jonathan Eaton, Esq. and Justin Kelsey, Esq. as a reaction to Attorney Baer's article: Attorney Baer's post d...

In our last post we provided information on the three types of orders that can help protect someone from an abusive spouse. In two scenarios these orders can be permanent: An abuse prevention order under M.G.L. c. 209A , often referred to as a 209A or restraining order, can be ordered for any fixed period of time up to one year. If an ex-parte hearing (without the defendant) was held for the initial hearing, then another hearing will be set up within ten (10) days to give the defendant an opportunity to tell their side of the story. After that opportunity, the order can be extended for up to one year. At the extension hearing if the plaintiff appears, the court may extend the order for any additional time reasonably necessary to protect the plaintiff. This extension can be permanent if the circumstances warrant that decision. In addition, pursuant to a divorce case under M.G.L. c. 208, § 18 , the Probate & Family Court can order a husband or wife to refrain from placing any r...

In Massachusetts, there are three statutes which can provide protection from an abusive spouse. As a preliminary warning, none of these statutes, nor any other piece of paper, can physically prevent someone from harming you. These laws only provide for extra penalties and orders to discourage such behavior. If you are in fear of being harmed, and don't think that anything will stop your abuser then you should call a Domestic Violence Program for help. Despite the limitations of these orders, they can still be useful tools in discouraging, preventing and punishing abusive behavior. The three statutes that can be used by victims of abuse to obtain protection from an abusive spouse are: 1. M.G.L. c. 208, § 34B - Order to Vacate Marital Home Authority: The Probate & Family Court may order a husband or wife to vacate the marital home as part of a divorce or separate support proceeding. Standard: The Court may order the offending spouse to vacate "if the cour...

Warning: this blog is going to show you information that can be used for good or evil. If you are taking pictures with your phone (and even some cameras) and then posting those pictures on the internet, you are sharing more than just the picture. You are probably also sharing the date and time the picture was taken, the type of phone you have, what software you are using, and scariest of all - the exact location where the picture was taken. Do I have your attention now? Let me show you how it works: This morning I took the above picture with my IPhone. I edited the picture on my computer and posted it here. Even after editing the picture, however, the picture retains certain embedded information. To see this additional information you don't have to be a super smart computer hacker. On a PC, simply right-click the picture and select properties: Now click on the details tab and immediately you will see some information that I might not have intended to share, such as the date ...

The short answer is that your spouse has probably not violated any law by reading your e-mail, even if it is against your wishes. The law of technology is constantly changing, though, and you may want to think twice before snooping in your spouse's email. The current law varies from state to state and you might be subject to criminal charges as the law catches up with technology. In Massachusetts, the First Circuit Court of Appeals in 2004 ruled that e-mail snooping was not a violation of the wire-tapping statute, and therefore not a crime under that law. If combined with concerning communications, e-mail snooping may be enough to trigger the criminal harassment statute in Massachusetts, though this would depend more likely on the nature of the other communications. There is a Federal Law, the Electronic Communication Protection Act (ECPA) , that prohibits interception of an e-mail while it is being transmitted. However, ECPA does not prohibit snooping in your e-mail inbox o...

Where you reside can affect whether or not the Court has jurisdiction over your case as discussed in a previous post: Where you get Divorced matters! - British woman loses rights to £1.2 Million Pension . Assuming that Massachusetts has jurisdiction, you still need to disclose your address pursuant to Massachusetts Domestic Relations Procedure Rule 11 which states in pertinent part: "A party who is not represented by an attorney shall sign his pleadings and state his address, telephone number, and e-mail address if any." The Court needs to know your address so that the Judge can verify that jurisdiction is proper and in the event the court needs to send you Notice of any hearings or other matters. Likewise the opposing party needs your address in order to send you proper notice of pleadings pursuant to Massachusetts Domestic Relations Procedure Rule 5(b) and a P.O. Box is not considered sufficient. It is possible to withhold your address from a party to a divorce case i...

We often warn our divorce clients that e-mails they send to their soon to be ex-spouses WILL show up in court. This is because it's almost impossible for two parties involved in an emotional dispute to write correspondence without overtones of disappointment, hurt or anger showing through in tone. This is even more likely in informal correspondence like e-mail. The same is true for texts, especially now that texts are beginning to replace phone calls as the preferred method of quick short communications. According to this Huffington Post article, "Americans punched out more than 110 billion text messages in December 2008." There are also significant domestic violence implications with text messaging. For instance, text messages are considered a communication and a violation of a restraining order, even if the victim sent a text message first a reply could result in an arrest and charge of violating a restraining order. In addition, texts can be another way for abuse...

The Kramden's and Litigation: Ralph is a bus driver and Alice is currently unemployed but has worked as secretary at times when Ralph has been laid off. They have no children and Alice is primarily responsible for the management of the finances. Ralph often gets involved in ridiculous schemes that Alice claims have wasted their money. Ralph and Alice often insult each other, and Ralph makes constant threats such as "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!." Recently Ralph was caught using his cell phone while driving and lost his job as a bus driver. When he came home and told Alice she berated him for his stupidity and Ralph became extremely angry. He got right in Alice's face and said, as he so often has, "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!." Alice replies "I'd like to see you try" and in response Ralph steps closer to her and p...

President Obama on September 30, 2009 proclaimed October, National Domestic Violence Awareness Month. As with any issue that endangers the health, safety or welfare of individuals, the first step towards ending that danger is to raise Awareness. It seems that we are bombarded everyday with walkathons, and fund raisers, and pharmaceutical commercials that want to raise our Cancer Awareness, our Heart Disease Awareness, even our Awareness of Erectile Dysfunction. It becomes easy to forget that there are dangers in this world, and even in our own backyard, that don't stem from viruses or diseases. There are dangers, such as Domestic Violence that aren't caused by hunger or a germ, but instead by poor choices and a failure of support. It's hard to know if there will ever be a cure for cancer, but we know the cure for Domestic Violence. A safe home and access to justice can provide victims of Domestic Violence with a voice to end their suffering. If you or someone you know ...