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 hav...

The Abuse Protection statute in Massachusetts M.G.L. c. 209A , often referred to as a restraining order, does not apply to all relationships.  You cannot obtain a restraining order protecting you from anybody.  The statute limits the protections to individuals suffering from abuse by "family or household members" which is defined in the statute as follows: “Family or household members”, persons who: (a) are or were married to one another; (b) are or were residing together in the same household; (c) are or were related by blood or marriage; (d) having a child in common regardless of whether they have ever married or lived together; or (e) are or have been in a substantive dating or engagement relationship, which shall be adjudged by district, probate or Boston municipal courts consideration of the following factors: (1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationsh...

In a recent Supreme Court decision,  Moreno vs. Naranjo , SJC-11070 (2013)  , the SJC dismissed an appeal as moot for a 209A order that had expired, but addressed the underlying issue anyway in order to provide guidance to District Court judges.  In  Moreno  the District Court judge had considered the impact of the order on visitation and had ordered a 6 month order instead of 1 year because of the likely impact of the order on the relationship between the defendant and the child.  The SJC indicated that this consideration was improper. In deciding the length of an order, the only consideration should be the "time reasonably necessary to protect from abuse the plaintiff or any child in the plaintiff's care or custody."   This doesn't mean that an order can't include provisions for visitation, but only that the impact the order has on visitation shouldn't affect the choice to issue the order or for how long.  That choice is dependent solely on ...

UPDATE:  The changes proposed in this post were adopted on June 25, 2013 and became effective August 1, 2013. Massachusetts Supplemental Probate and Family Court Rule 412 currently allows for the filing of a Joint Petition for Modification of Child Support when two parents agree that the child support figure should be amended.  Often when there has been a material change in circumstances , two parents can agree that the child support should change to reflect the new circumstances.  If the new agreement can be reduced to a writing, then it can be submitted to the court with a Joint Petition under Rule 412, and the court may approve it without requiring a hearing (although the court may schedule a hearing if they have questions about the agreement). The obvious benefit to this joint petition process is avoiding the cost and stress of unnecessary trips to court when an agreement is reached between the parties.  When parties can't agree on whether chi...

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 -...

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...

Immediately upon being served with a 209A restraining order, M.G.L. c. 209A § 3B requires that the subject of the order surrender their License to Carry Firearms and/or Firearms Identification Card, all “firearms, rifles, shotguns, machine guns and ammunition which he then controls, owns or possesses.” Law enforcement officers, upon service of the restraining order, shall immediately confiscate all licenses, firearms and ammunition. Note that the requirement to surrender all firearms and licenses must be made immediately upon service of the order, even if you intend to oppose the issuance of the order at a subsequent hearing. What happens to the seized firearms? Weapons seized as a result of a restraining order by the police may only be thereafter transferred to a licensed dealer by the police department. The police department may not release the firearms back to you (even should the order be ultimately vacated); nor may they release the firearms to any licensed individual – ...

HO1330 is the third House bill which proposes to make amendments to the current custody statute. This proposal was filed in the House on January 21, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011. H.2244 – Legislation relative to the rights of parents in child custody proceedings. This proposed bill is split into seven sections, each one making a specific amendment to one paragraph of the current bill. The clear trend of this proposal is a focus on parent's rights instead of the "best interest of the child" standard. Section 1 deletes paragraph 6 of the current statute. First off, this means that the definitions of custody are kept in tact. Instead of considering the happiness and welfare, and past and present living situations, though, this proposal would have the court consider the following factors when determining custody: Section 31 of Chapter 208 of the General Laws, as appearing in the most recent edition, is her...

HO1330 is the second House bill which proposes to make amendments to the current custody statute. This proposal was also filed in the House on January 20, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011. H.1330 – Legislation relative to the determination of the legal custody of children in court cases. Unlike the first House bills we reviewed (H.1306) , this proposal doesn't change the best interest standard, but still adds a presumption of temporary shared physical custody. This bill begins by deleting the current statute and replacing it entirely, however much of the text remains the same. The definitions of custody remain in the proposed bill, as does the presumption of temporary shared legal custody. The bill adds the "rights of the parents" to the factors that the court should consider in creating parenting plans. The proposal keeps the language allowing the Judge to consider adverse affects of the past or present livin...

There are four house bills that propose changes to the current custody statute. However, H.1306 and H.2684 are practically the same, though the language in each and the numbering of sections differs slightly. We will review H.1306 primarily in this post and will simply note how H.2684 is different. H.1306 was filed in the House on January 20, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011. H.2684 was originally referred to the Committee on Children, Families and Persons with Disabilities, but on April 13, 2011 was discharged and on May 5, 2011 was referred to the Joint Committee on the Judiciary where all of the similar bills are awaiting action as well. H.1306 – Legislation relative to shared parenting in cases of divorce. ( H.2684 – Legislation relative to supporting children and parental custody. ) Similar to the two previously reviewed Senate proposals, these proposed bills replace large sections of the current statute, replacing them wit...

Having provided an in-depth review of the current custody statute in Massachusetts, we will now move on to our review of the six proposed bills that would significantly modify that statute. The first bill we will review was filed in the Senate on January 19, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011. This bill makes some changes which could be positive, but also suggests one change that in our opinion goes too far. S.659 – Legislation to strengthen family relationships through responsible shared parenting This bill begins by deleting the current statute and replacing it entirely: Chapter 208 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by striking out section 31 and inserting in place thereof the following section: - However, much of the original language remains in this version, including the definitions of sole legal custody, shared legal custody and sole physical custody. The first difference i...

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...

Following up on an earlier blog post discussing how contact through social networking websites, such as Facebook, may be an arrestable offense when there is an existing restraining order in effect, threats posted on social networking websites may also give rise to the issuing of a restraining order. In Arizona, an argument between two college students was escalated when one of the students wrote on his Twitter account that he would "not hesitate to punch [the other student] in the face if I saw him . . . Just sayin." The other student then obtained a restraining order because of the "tweet." Regardless of whether the "tweet" was a legitimate threat, it is important to realize that writing something of that nature on a social networking website makes it possible that the individual to whom you are referring might read it, and might take it seriously. Be smart. Don't take your arguments to the internet. You are just documenting the "he-said...

In tonight's episode of Community ("The Psychology of Letting Go" on NBC) one character treats his Restraining order like a force field. By moving towards the defendant, he forces the defendant of the restraining order to move away so that the defendant can stay at least 25 feet away. In reality, restraining orders are not force fields. Although, a plaintiff cannot technically violate their own restraining order, a Judge will likely vacate the restraining order if they find out that the plaintiff has been contacting or approaching the defendant. That type of behavior demonstrates that the plaintiff is not in fear of the defendant. In Massachusetts, M.G.L. ch. 209A provides that a plaintiff can obtain an abuse prevention order (commonly referred to as a restraining order) if there is attempted or actual physical harm or "placing another in fear of imminent serious physical harm." If a plaintiff is able to approach or contact the defendant then that is strong...

Two weeks ago, a Florida man was arrested for logging on to his Facebook account and requesting that his estranged wife list him as a "friend" on the popular social networking website, Facebook. Of course, ordinarily requesting that someone be your "friend" on Facebook is not an arrestable offense, but it may be if it is in violation of a restraining order. While it is important to realize that the actual act of requesting that someone be your Facebook "friend" may seem completely innocuous, a judge may have little patience for it if there is an outstanding restraining order between the two individuals. If you are a party on either side of a restraining order, contact online, such as a friend request, instant message, email, or otherwise, is considered to be contact which may violate "no contact" provisions of most restraining orders.

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...

In addition to beginning the litigation process, immediately upon the filing of a Complaint for Divorce, the Plaintiff (person who filed the Complaint) is restrained from taking specific actions with respect to their assets and liabilities. Along with the Summons the Court will provide to the Plaintiff, a Notice describing the Rule 411 Automatic Restraining Order. A sample Notice describing the Rule 411 Automatic Restraining Order is available here. Upon the service of the Complaint and Summons on the other party (the Defendant), they too become restrained by Rule 411. Generally Rule 411 prohibits either party from a. selling, hiding, encumbering or disposing of any personal property or real property in which either of you have an interest (except for in the case of specific exceptions), b. incurring any further debt that would burden the credit of the other spouse (such as making charges on joint credit cards), c. changing the beneficiary designation on any life insurance policy, pens...

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...

In Massachusetts, M.G.L. c. 209A allows the court to create orders that protect people from abuse. These orders, known as “Restraining Orders”, “Abuse Prevention Orders” or “209A Restraining Orders” prohibit the defendant not to abuse or contact and to stay away from the person who has obtained the order, and, if applicable, the person’s minor children. 209A Restraining orders may be obtained against a current or former spouse, a current or former household member, the other parent of a child, a relative by blood or marriage, or anyone with whom the person has had a substantial dating relationship. If the parties do not have one of the relationships described above, the court will not issue a 209A Restraining Order. Obtaining a 209A Restraining Order is a civil proceeding, rather than a criminal proceeding. That means that the person seeking the order must prove by a preponderance of the evidence that they have a "reasonable fear of imminent serious physical harm". Put ...

Beginning May 4, 2009, Norfolk County will start a pilot program involving the interdepartmental transfer of certain abuse prevention proceedings. In plain English this means that 209A Restraining Order cases opened in a District Court in Norfolk County may be transferred to the Norfolk Probate and Family Court, if there is already an action pending in that Court. EXAMPLE: Whitney and Bobby are married and live in Dedham. One night they get into a fight and Whitney calls the police. Bobby is not arrested but is escorted from the home by the police and Whitney is provided with an emergency 209A Order for Protection from Abuse (commonly called a Restraining Order). The Restraining Order requires that both Whitney and Bobby show up at the Dedham District Court the next day to go in front of a Judge who will decide whether the Restraining Order should be extended. After a hearing the Judge extends the Restraining Order for two months ( “a cooling off period”). That afternoon, Whit...