Mike Rich’s blog post brought this new law, Chapter 23 or the Acts of 2010 to my attention.
The list of items for which one 16 year old can now get a restraining order against another 16 year old is almost endless. This new law allows for emergency, ex-party retraining orders without any family or dating relationship, which go on the defendant’s criminal record for ever, just like current 209A orders – and violation of them is a criminal offense with potential incarceration, which means new categories of state paid indigent defense criminal cases.
Maybe we should have specialized “restraining order courts” now, to avoid clogging the other courts, and have expertise so as to weed out the bogus, vindictive, harassing anti-harassment complaints from the truly bullied and harassed?
Anyway, here is a quote from Chapter 23 of the Acts of 2010:
“Abuse”, attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm.
“Harassment”, (i) 3 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.
There is no filing fee. These orders can be sought and granted over the telephone after hours, and the complaining party can seek monetary damages. If allegedly violated, any juvenile who has been accused, and any indigent adult, will now be entitled to an attorney at the expense of the Commonwealth.
Apparently, this law goes into effect on May 10, 2010 – and there is no equivalent of the Congressional Budget Office to say what the costs of this new law will be to courts, law enforcement, or in indigent defense appointments].
Given that the Congressional Budget Office predicts that unemployment in real numbers will be over 10% this year and next year and maybe down to 9% by 2012, there are way too many people who are unhappy AND have way too much time on their hands.
Again, shall we establish a Court just for these and other Restraining Orders to avoid clogging and shutting down the other courts – with its own trackable line item?
Shouldn’t the person against whom such an order is sought have a chance to defend himself before said order is issued? Anything less sounds completely unfair and possibly unconstitutional.
The rationale is that it is an “emergency” – but read the act…constitutionality has been upheld in the 209A context for ex-parte orders, and for “emergency” abuse and neglect filings by DCF. Sometimes the nature of the emergency is so obvious it makes sense, other times, no, at least not to me, no emergency present in my view.
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p>The issue is discretion – where there is discretion, i.e., choice, sometimes choices will be made in wise and well considered ways, other times, not.
…there should be some opportunity for an ex post facto defense, resulting in the order being completely expunged from the record if appropriate. Otherwise, this sounds as easy as sending someone to the guillotene during the French Reign of Terror on the mere rumor that that person supported the King.
It doesn’t sound like you know very much about what happens to divorced fathers in our badly broken probate system.
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p>Yes, it is exactly like sending someone to the guillotine on a rumor (also like paying someone a bounty in exchange for a name of somebody else to send to GITMO, but that’s a distraction). Yes, that has been the law in MA for a very long time.
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p>The motivation is quite legitimate. Too many women were being beaten and killed by too many ex’s the moment they complained about ongoing abuse of themselves and their children. Too much of that was a direct response to a battered woman choosing to flee an abusive spouse. When the law required an appearance before the court, the complaining woman was all to often found beaten to death the next day.
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p>Here’s the problem. The 209A restraining order is now (or at least was in the late nineties) a standard tool in the arsenal of divorce attorneys representing women who wanted sole physical and legal custody of their children.
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p>Here’s how it worked:
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p>1. The mother tells somebody she is “in fear” of the reaction of her ex. The key words are “in fear”.
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p>2. A 209A, for a short period (something like a few weeks, I think, perhaps six months), is both automatic and required. The husband cannot see his children.
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p>3. As the 209A is expiring, the mother claims that it would be “disruptive” to her “already traumatized” children to “re-introduce” the father to their lives. Boom — no more access to the children for dad.
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p>In far too many cases (including yours truly), the mere threat of this action is sufficient to force the father to sign away significant property rights. In my case, I was forced to sign away my access to a brand-new 2,500 square foot home that I owned before the marriage (and divorce) in question. No, I was never abusive towards my ex-wife and children. Instead, my ex-wife wanted the house and wanted me out of the picture (except for my child support). Some women do exploit the system.
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p>The truth is that divorced fathers in Massachusetts have essentially no recourse in Massachusetts courts when it comes to matters that involve their children (with the caveat that, as always, men who have pockets deep enough to pay tens of thousands of dollars for each event can generally fare better).
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p>I understand the need for these restraining orders, and I understand the need for their extension. I also share Deborah’s concern that an already bad situation — for all parties concerned — is likely to get far worse.
Nothing should be automatic about this. It seems a judge needs to step in to determine whether your steps 2 and 3 above actually apply. If the spouse has been physically abusive it seems like as soon as the complaint is filed, the local cops should be dispatched to arrest the alleged abuser without warning and thus no time to harm the complainer. Obviously the whole speedy trial thing still applies, but if someone is truly dangerous shouldn’t he be held without bail rather than have a restraining order against him anyway? I’m sure we’ve all heard and read stories about how difficult it is to enforce those orders where lack of enforcement results in more harm and even death. It should also be absolutely illegal to use this as extortion leverage against your real property. Unless the alleged victim is using this law in good faith to prevent abuse, that person should be charged with filing a false report. Thank you for your insight on this.
I’m heartened to see that there are attorneys in our probate system who appreciate the challenges faced by divorced dads who (like me) really do care about our children. I long ago chose to disassociate myself with the various advocacy groups (like “Fathers Without Families”) who — in my view at least — exploit these issues to advance their own rightwing agenda. I also, long ago, chose to invest my energy and effort in creating a solid and loving relationship with my three children (in spite of their mother’s relentless efforts to interfere).
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p>I applaud your tireless efforts to bring constructive change to this very broken system. Sadly, I suspect that the solution to this problem will have to benefit our children and grandchildren — my children are essentially grown, and any beneficial change we bring will happen to late to help them and me.
I was divorced in the ’90s, and was threatened with a protective order even though there was no abuse. In my case, there was no house to lose; it was an attempt extort alimony (she made twice what I did.) When we finally did get to court, a judge with no patience for such nonsense ended all that, and granted me the visitation with my son that had been withheld. I have been wondering since then when the pendulum will swing the other way, so that some equity is restored to divorce proceedings in Massachusetts. That pendulum has not moved in at least twenty years.
Quasi-judicial state agencies in general constitute a very serious problem, exercising authority that once was and ought to have ever been solely that of the Court.
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p>From abuse of DCF and 209As to granting such agencies as EFSB and DTE power to review and even nullify zoning laws, the executive branch is exercising judicial branch powers.
Thanks for the mention and link to my blog post, AmberPaw.
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p>A couple of other noteworthy things about the Harassment Prevention Act:
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p>It contains damages provisions (both as part of the original order and in the section about consequences of violations) —
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p>AND, as part of each of those,
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p>The plaintiff may get attorney’s fees.
When another Globe story about a woman beaten or killed hits the streets? Where is the outrage when some woman is legitimately “in fear” of her husband, partner, boyfriend, or the father of her babies?
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p>Seriously, I have some sympathy with the “Men’s Movement” which would like to see some balance in the probate system. I see your points, and they have some justice behind them. But I have more sympathy with the woman who goes back to her abusive partner rather than face the risk of being beaten again. Or of having her children taken because he has the job, and controls the money, and can prove he would be a better parent than she would (that’s the way she sees it, your experience to the contrary notwithstanding). Or the hundred other stories like this I’ve heard in 15 years of practicing emergency medicine (where do you think the woman goes after she’s been beaten? Not infrequently, the newly sorrowful and subdued partner comes too, and tries to control the medical process to hide his involvement).
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p>If you want the balance restored, the most important thing you can do is work as hard as you can against the notion that either women or children are property, against the culture that allows men to beat women (or anyone to beat anyone else), and that demands the kind of response that has been generated in public policy because the public, and hence lawmakers, were tired of hearing that no one was doing anything about domestic violence. When domestic violence is less prevalent, the probate problem will solve itself.
You wrote:
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p>In Massachusetts?
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p>I’d like to see some statistics about how many mothers lose access to their children, compared to how many fathers. Perhaps some of our family practice attorneys can detail what a father has to do in order to to “prove he would be a better parent.”
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p>Domestic violence is a terrible thing. The overwhelming majority of fathers lose access to their children, and the overwhelming majority of those fathers do not beat their children or their ex-wives. The overwhelming majority of divorced fathers who have jobs pay fifty percent of their take-home income to their children’s mother (because that’s the guideline amount). The overwhelming majority of divorced mothers have sole physical custody (and meaningless shared legal custody) of their children, because that is the presumptive “best” outcome.
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p>The overwhelming majority of divorced fathers pay child support and are able to see their children every other weekend and once during the week. THAT problem is not going to go away even after the domestic violence problem is solved. For too many distraught fathers, that problem contributes to the anger they feel towards their ex-wives. Most fathers can manage that anger. Sadly, too many can not.
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p>I’m happy to have a discussion with you about what does and does not work in tackling these thorny issues — but only if that discussion is reality based.
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p>The reality is that our current probate system is overwhelmingly biased against fathers, and in fact perpetuates and reinforces many of the worst stereotypes all of us work to overcome.
That’s me Tom is describing. There’s nothing quite like that regular reminder that you’re peripheral to your child’s life, when you have to drive that child back to the mother’s house after ‘visitation.’ It invariably left me depressed and angry. I could deal with it, but it sure didn’t help make me feel cooperative when the ex came up with some new wrinkle on our relations.
I think it is a highly unfair characterization that only women abuse restraining orders. My ex partner assaulted me to the point I required hospitilzation and obtained an RO against me while I was still in the hospital. The Judge kept his order in place and vacated the one I got after I was released. It depends on the Court and the Judge I suppose, but the whole business of RO’s is a mess and already a clog in the court system. They are so easily abused, jilted lovers already use them as weapons. And all it takes is a claim, no proof, of a violation and the alleged perpetrator is either arrested or has a complaint filed by the PD against them hands-down. The irony is I don’t feel RO’s really protect anyone. If someone wants to hurt you, they will find a way and a piece of paper will not stop them. If someone wants to harrass you and annoy you and they possess the RO, and you respond, even to say “leave me alone”, you are thrown in jail. People lie all the time on the affadavits, the victim witness advocates are not highly trained to separate fact from fiction.
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p>These new laws are ludicrous beyond belief, the system is ALREADY broken. The $$$ spent on defense for indigent (and oftentimes innocent) defendants must be substantial as well.
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p>The new laws will only perpetuate the stakes in real domestic violence cases. Geez, I think for couples or individuals in whatever kind of relationships, mediation should be the mandatory first step unless there has been violence. These orders give bad intentioned people, and the police, WAY too much power.