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.

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 with greater presumptions for shared custody. H.1306 is divided into 8 sections (H.2684 is 7 sections). These bills make no changes to the definitions of custody and make no additions to the definitions.



Section 1 of H.1306 then deletes the following language:

Section 31 of Chapter 208 of the General Laws, as appearing in the most recent edition, is hereby amended in the sixth paragraph by striking the following:.- When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health.

Section 2 of H.1306 replaces this language with the following:

Said section 31 is hereby further amended by inserting after the sixth paragraph the following new paragraph:- In furtherance of the public policy that the happiness and welfare of children is enhanced by frequent and continuing contact with both their parents, upon the filing of an action in accordance with the provisions of this section, section twenty eight of this chapter, or section thirty-two of chapter two hundred and nine, the parents shall have temporary shared legal custody and shared physical custody of any minor child of the parties. In making an order or judgment relative to the custody of a minor child, there shall be a presumption that, absent emergency conditions, or abuse or neglect of said child, the parents shall have shared legal custody and shared physical custody of said child. The judge may enter any order or judgment for sole legal custody for one parent and/or sole physical custody for one parent if written findings are made setting forth the specific facts supporting a determination that the child would be harmed as a result of shared legal or shared physical custody. In making any order or judgment concerning the parenting schedule of each parent with a minor child, the rights of the parents, absent emergency, abuse, or neglect of one of the parents, shall be held to be equal, and the Court shall endeavor to maximize the exposure of the child to each of the parents so far as the same is practicable. A change in the availability of one or both parents to parent a minor child, and/or a change in the developmental stage of a minor child, shall be presumed to constitute a material and substantial change in circumstances for the purposes of a complaint or counterclaim seeking to modify a parenting schedule or parenting plan incorporated into a judgment of divorce. Nothing herein shall be deemed to modify the provisions of G.L. c.208, sec. 31A.

Section 3 of H.1306 then deletes paragraphs 7-10 of the original statute, so that they are essentially replaced by the above language.



The combination of these changes would have the following effects:



1. Directs the court that frequent contact is in the best interest of the children, regardless of whether the past or present living conditions are adversely affecting the children.



2. Creates a presumption for temporary shared physical custody as well as shared legal.



3. Requires that in order to grant sole legal or physical custody the Judge must enter findings that the child would be harmed by shared custody.



4. Creates rights of the parents which shall be considered equal (absent abuse or neglect), and requires the court to make an effort to maximize time with both parents. This implies equal time, but doesn't explicitly require it, giving the Judges some room for discretion.



5. Allows parenting plans to be modified as children get older (and enter new developmental stages) or if either parent has a change in availability (i.e. a change in work schedule or living situation).



6. Deletes the presumption against shared custody in restraining order cases.



Bill H.2684 makes essentially the same changes but consolidates Sections 2 and 3 into one section, so the numbering hereafter will be off by one section. The only notable differences are the addition of an indication that the presumption of shared legal and physical custody shall be rebuttable and that said presumption:

may be rebutted by either party by a preponderance of the evidence that the other parent has engaged in a pattern or serious incident of abuse or neglect of the minor child.

H.1306 was less specific as to the evidentiary standard but essentially allowed for the same exception.



Section 4 of H.1306:

Said section 31 is hereby further amended in the twelfth paragraph, in the third sentence, by inserting after the words "The court may also reject the plan and issue a sole legal and" the following:- /or sole

The intention here is to clearly give the Court the authority to award sole physical custody but shared legal custody (or vise versa). Although, a strict reading of the current statute might not allow this, it is common practice anyway. Section 3 of H.2684 is practically the same with no functional difference.



Section 5 of H.1306 adds language requiring the court to make written findings "setting forth the specific facts supporting a determination that the child would be harmed as a result of shared legal or shared physical custody" if the court rejects a shared parenting plan submitted by the parties. This is the same standard presumption created by this bill for temporary orders and is therefore consistent. Section 4 of H.2684 is practically the same with no functional difference.



Section 6 of H.1306 adds language to indicate that:

The failure of one or both parties, however, to submit a shared custody implementation plan for trial shall not diminish the presumption of joint physical and joint legal custody, nor affect the child's right and the parents' rights to frequent and continuing contact.

This will presumably protect parties who are unrepresented and don't know that they are required to file a parenting plan, by not punishing their rights for their failure. Practically speaking, though, they will not receive the same consideration as a parent who does submit a plan because the Judge will not have two proposals in front of them when making a decision. The thought here is nice, but in practice it would be a bad idea not to submit a proposal if you want your voice to be heard as well. Section 5 of H.2684 is practically the same with no functional difference.



Section 7 of H.1306 amends the child support section to say the opposite of what it currently states:

Said section 31 is hereby further amended by striking the fourteenth paragraph and inserting in place thereof the following:- If shared physical custody is ordered, the judge shall at that time make a child support order, or revise its previous order, as appropriate to the circumstances.

This is vague enough to allow the Child Support Guidelines to control, and frankly given the amount of time and work that goes into the crafting of the Guidelines, this makes sense. It also resolves the apparent conflict between the current Guidelines and the current statute. Section 6 of H.2684 is practically the same with no functional difference.



Finally, Section 8 of H.1306 amends the last paragraph to again change the standard from "best interest of the children" to require a finding that the child "would be harmed as a result." This is consistent with the other changes proposed by this bill. Section 7 of H.2684 is practically the same with no functional difference.



Conclusion



These proposed bills have advantages over the senate proposals we reviewed because they at least recognize that equal time may not trump the need to make changes to the parenting plan based on the developmental stages of the child. Recognizing that different developmental stages of the child are relevant is an important factor to include when creating a presumption of shared physical custody.



The standard for overriding shared custody plans in these proposals is "harm to the child" as opposed to "best interest of the child" which is clearly a more stringent standard. Although, H.2684 includes both in its language, the existence of the more stringent language will control anyway and so the practical affect is the same. In reality, we're not sure it would make all that much difference anyway because "harm to the child" is still a vague and broad standard. Judges could presumably make a finding that anything not in the best interest of the child could cause them harm. Therefore, we are not that concerned about this stronger language, given that it's impact is likely more instructive as to the importance of the shared custody presumption.



Overall these are better structured bills than the two senate proposals, but these bills still go too far in our opinion by deleting the Restraining Order presumption language. This language could be amended to make it less objectionable, but deleting it altogether is irresponsible. If this one change could be made, then this is the first proposal that balances a shared physical custody presumption with other relevant considerations. As the language currently stands, however, we can not endorse either of these bills.



To read more about Shared Parenting in Massachusetts, check out the following pages:



Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.



Child Custody Mediation

Collaborative Child Custody Resolution

Child Custody Litigation

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 is in the definition of shared physical custody, adding the italicized language:

"Shared physical custody", a child shall reside equally with and be under the supervision of each parent for specified periods of time; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents. The child is not required to reside with each parent for an equal amount of time during any given period.

These additions indicate a preference for equal time but also clarify the common-sense approach of sharing parenting time equally does not require counting every minute of every hour to ensure that the time is exactly equal.



Another change to the definitions in this proposed bill is the addition of a definition for the term "parenting plan":

"Parenting plan", an implementation plan using the standardized parenting plan format, as approved by the chief justice of the probate and family courts, which shall include, setting forth the details of shared physical custody including, but not limited to, the child's education; the child's health care; procedures for resolving disputes between the parties with respect to child-raising and duties; and the periods of time during which each party will have the child reside with each parent, including holidays and vacations, or the procedure by which such periods of time shall be determined.

This addition requires the Courts to create a standardized parenting plan format. This format could presumably be reduced to a form with certain required details for each case, which would result in more consistent parenting plans. Having standardization would protect pro se parents (those without attorneys) by helping them understand what issues their agreements should address. However, this approach would also reduce the flexibility which parents have in crafting their own parenting plans currently. How the Chief Justice implements this section could make a big difference on how flexible parenting plans could be in the future.



The next section of the current statute is largely superfluous because it doesn't add anything to later sections. However, this proposed bill would change this paragraph significantly by adding the following italicized language:

There shall be a rebuttable presumption that shared legal and shared physical custody is in the child's best interest. In making an order of judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child?s present or past living conditions adversely affect the physical, mental, moral or emotional health of the child, and the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent. The court shall further consider the capacity and disposition of each parent to comply with the terms of the parenting plan.

The current statute contains only one presumption, temporary shared legal custody. This means that there is currently no presumption for temporary or permanent shared physical custody or even for shared legal custody at a trial. The addition of the first sentence above, would change that completely, by creating a presumption for both throughout the case.



The addition of the "willingness" clause specifically addresses the fact that shared custody is often denied because one parent refuses to cooperate with the other. However, pointing it out specifically as a factor does not solve the problem that these cases are hard, not because of a vague standard, but because of the difficulty in obtaining evidence of alienation. It is very tricky to prove, especially with the evidentiary limitations on hearsay, that a person is not being cooperative or trying to alienate the child. This section clarifies that a Judge should consider this evidence, but doesn't solve the problem of how difficult it is to get that evidence in the first place. Even with this change, these types of cases will remain very complicated, and probably still require the involvement of a Guardian at litem.



As further enforcement of these new presumptions, the proposed bill adds a presumption of temporary shared physical custody to the presumption of temporary shared legal custody. This means that at a temporary order hearing, a Judge will have to order shared physical custody unless he or she makes a finding that shared custody would not be in the best interest of the child. This proposed bill also deletes the language that specifically allowed the Judge to consider "whether the parties have a history of being able and willing to cooperate in matters concerning the child." Of course, deleting the language carries some weight, but since this proposal doesn't preclude the Judge from considering this information it could still be considered under the "best interest of the child" standard.



The next section in the current statute was a further exception to the shared legal custody presumption in cases involving a restraining order. If a restraining order issued, under the current law, then the court must provide findings to allow shared custody. In other words, the Judge must have a good reason for allowing shared custody if their is a restraining order. This is essentially a presumption that the standard which must be met to obtain a restraining order (history of physical or sexual abuse or a reasonable fear or imminent serious physical harm), is sufficient to suggest that shared custody would not be appropriate.



This proposed bill turns that presumption around:

If the court finds evidence of abuse, neglect or domestic violence as defined by section 31A of chapter 208, section 38 of chapter 209, section 3 of chapter 209A, or section 10 of chapter 209C and issues a temporary or permanent custody order which does not grant shared physical custody, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child?s best interests and provides for the safety and well-being of the child.

This language requires that a Judge not make any changes to the shared custody presumption due to a restraining order, unless the Judge finds that the abuse affects the child, and the limitations are in the best interest of the child. The requirement of specific findings relating to the child is presumably based on the idea that even if abuse exists between the two parents that doesn't necessarily mean the accused abuser would also endanger the child. If you consider cases of true physical domestic violence, this presumption seems ludicrous. If a parent is willing to hit the other parent, why would't we assume they may also hit their child. The proponents of this change would likely respond that cases of actual violence would clearly allow the Judge to make the findings required under this language. So the change is really meant to deal with the cases where the accusations are vague or heavily disputed. But is this enough to shift the presumption?



Shifting this presumption is an idealogical choice based on an assumption that the majority of restraining orders involve either minor issues blown out of proportion, claims of fears that aren't based in reality, or accusations that are completely fabricated. While it is true that these cases do exist, changing the presumption to require Judges to make findings that the alleged abuse does not affect the child, essentially requires them to rehear the entire restraining order case in order to decide the issue of shared physical custody. If the majority of restraining order issues didn't affect children, that would make sense, but this is an assumption that would require some evidence before we could back it. The presumption of shared custody should not outweigh some requirement to err on the side of protecting children first. In cases where a restraining order has been extended there is at least one Judge who found good reason for it. This should be enough to create a presumption against the accused abuser, if only to err on the side of protecting the child. It may be unfair in some cases, but much less unfair than requiring a victim of abuse to prove the abuse twice in order to protect the children.



The next change is less controversial, but still significant. The language in the current statute relating to when parties must propose parenting plans to the court is shortened because much of that detail is now included in the added "Parenting Plan" definition. There is also an addition here, though, of the words: "custody hearing"

The parties, jointly or individually, shall submit to the court at the custody hearing or trial a parenting plan. The court shall accept a completed parenting plan submitted and agreed upon by both parties, in the event that a parenting cannot be agreed upon by the parties, the court may issue a parenting plan modifying a plan submitted by the parties. A parenting plan issued or accepted by the court shall become part of the judgment in the action together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child.

This change would mean that parents would have to submit parenting plans at any custody hearing (including temporary orders). This is good practice anyway. In any hearing where issues are disputed we try to submit a proposed order for those issues. Requiring it puts everyone on notice that they should be prepared to do so and is therefore a change we are in favor of.



The final change is substituting the word "will" for the word "may" in the following paragraph:

Where the parents have reached an agreement providing for the custody of the children, the court may will enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children.

This doesn't change the Judges' discretion to make changes to the plan if they make findings that the best interest of the children requires something different, but absent said findings it requires implementation of the parents' plan. In practice this is what happens anyway. Judges seldom vary from an agreement, and when they do they provide reasons for the variation.



Conclusion:



Most of the changes suggested by this bill, in our opinion, are a step in the right direction. They may not be practical, such as the requirement of the Chief Justice to create standardized parenting plans, but all of these changes seek equality of parenting time as a default. Given the greater involvement of both parents in the modern world, and the greater likelihood that both parents work outside the home, these defaults make more sense today, with one exception: very young children.



Custody Reform should be based on evidence about what defaults are in the best interest of children. There is evidence of a shift in our society to greater parenting involvement of fathers, but the available evidence is still strongly in favor of very young children spending more time with their mother. Frequent contact with both parents is necessary at a very young age, but equal time doesn't take into account the realities of the unusual feeding and sleeping schedule that newborns have (especially if the mother is breast-feeding).



We are in favor of recognizing the societal shift in parenting duties through greater presumptions for shared physical custody. However, there should also be some indication that this presumption does not mean equal time for children whose age would not favor equal time. We would suggest some tempering of the shared physical custody presumption to recognize the different needs of children at different ages.



In addition, the proposed bill makes one change that goes too far, requiring extra findings in abuse cases. Again we would urge that Custody Reform be based on evidence about what defaults are in the best interest of children. There would have to be strong evidence that the majority of children were not harmed by the accused abusers in restraining order cases for us to favor this type of change. The current presumption errs on the side of protecting children, and that seems more appropriate absent strong evidence that such a presumption is not necessary.



Because of this one major difference of opinion with the drafters of S00659 this is not a bill we would support in its current format.



To read more about Shared Parenting in Massachusetts, check out the following pages:



Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.



Child Custody Mediation

Collaborative Child Custody Resolution

Child Custody Litigation

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 another way, the person seeking the order must demonstrate that the abuser has caused or threatened to cause physical harm, or has placed the victim in fear of imminent serious physical harm. Violation of a 209A restraining order is a crime, provided the restrained person knew of the restraining order.

Of course, if you are facing an imminent risk to your safety, call the police or 911. Your immediate safety should be your first concern. While the police can alleviate the immediate danger, calling the police to report abuse does not automatically result in a restraining order. If the immediate danger has passed, then you should consult with an attorney as soon as possible, and attend Court to request a Restraining Order by filing a Complaint for Protection from Abuse.

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, Whitney goes to the Norfolk Probate and Family Court in Canton and files a Complaint for Divorce. Whitney also files a Motion for Temporary Orders asking a Family Court Judge to give award her custody of the children and order Bobby to pay her child support.
At the hearing on Whitney’s Motion for Temporary Orders, Bobby asks for visitation because he hasn’t seen his children since the Restraining Order went into effect. The Probate Court Judge orders physical and legal custody to Whitney with a visitation schedule for Bobby.

Under the current rules, there are now two Orders from two different Courts that are different. The problem for Bobby is that the Dedham District Court Order is the one that the police will follow. If Bobby tries to pick up his children for visitation he may be arrested unless he and/or Whitney go to the Dedham District Court and ask the Court to amend the Restraining Order.

The pilot program would give the Norfolk Probate and Family Court Judge the power to transfer the Dedham District Court 209A Restraining Order case to the Norfolk Probate and Family Court. This means that when the Family Court Judge makes a decision it will apply in both cases and amendments can be made to the Restraining Order immediately to be consistent with the Probate Court orders.

This benefits Whitney and Bobby by having only one court for them to visit, allowing for less court hearings total, and by having one Judge who can hear all issues and make decisions that are consistent and take into account both the safety concerns of Whitney and the best interest of the children.

The full language of the Order can be viewed here. Under the pilot program, the transfer can be initiated by motion by either a party or sua sponte by the Probate and Family Court judge. The parties will have an opportunity to be heard on the question of transfer.

The pilot program will be for one year and will be reviewed after six months by the Chief Justices of the Probate and Family Court and the District Court.

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 restraint on the personal liberty of the other. In Champagne v. Champagne, the Massachusetts Supreme Judicial Court determined that this statute allowed for permanent orders pursuant to the broad language stating "to make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty."

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 abusers to track and control the lives of their victims. This article in the Patriot Ledger makes light of the Tiger Woods scandal and his immature texting, by noting how many wives and girlfriends check their significant other's phone history. This type of monitoring has a darker side when used by abusers.

No matter the context remember that what you put in writing, whether in e-mail, letter, facebook update, tweet, or even a text message leaves a record, and that record could come back to be used against you.

Thanks to DGVElaw for sending us the Patriot Ledger article.

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, pension or investment accounts, or
d. doing anything that changes your spouse or your children's coverage under medical, dental, life, automobile or disability insurance.

There are exceptions to Rule 411 which you should discuss with your attorney. Do not violate the Automatic Restraining Order or the Court may, and most likely will, order you to undo whatever action you took and sanction you for violating the Restraining Order.

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 pulls back his arm making a fist. Rather than wait to see if Ralph would actually hit her, Alice immediately backs away. Ralph does not follow her, but Alice is afraid and leaves the apartment.

She goes into a friend's apartment down the hall and calls the police. The police arrive and after interviewing both parties they indicated that they are not going to arrest Ralph. They ask Alice if she wants to request a 209A restraining order against Ralph and she states that she does. The police call the emergency Judge who approves an emergency restraining order. The police escort Ralph out of the apartment who has calmed down and accepts the police's request without any fight or argument.

Ralph, escorted by the police, collects some of his clothes and moves in with his friend, Ed Norton.

The following morning, Ralph and Alice both show up without lawyers at a hearing in the Suffolk District Court. Alice indicates during the hearing that she was afraid that Ralph was going to hit her during their argument, even though he has never carried out his threats in the past. Alice also states that she is not afraid of him right now and that she feels safe so long as he does not move back in. Alice also indicates that she intends to file for Divorce and that she doesn't want Ralph to move back in. Ralph agrees that he won't move back in and that he will continue to live with Ed. The Judge indicates to Alice that he can only extend the Restraining Order if she has a "reasonable fear of imminent serious physical harm," and given her testimony he cannot extend the restraining order.

Both Ralph and Alice consult with attorneys. Alice does not consult with a free Legal Aid service because she is back to working as a part-time secretary and she believes that she does not qualify for their services.

Alice borrows money from a friend to hire the attorney she consulted with because she doesn't feel safe negotiating directly with Ralph. Alice's attorney files a Complaint for Divorce.

Eventually right before the Pre-Trial, Ralph hires an attorney as well and the Divorce case is settled via Separation Agreement at the Pre-Trial. Both parties end up with some debt because of the cost of their legal fees.

COULD THIS HAVE GONE BETTER: Unfortunately, when domestic violence is an issue in a case, it is practically impossible to make use of mediation or collaborative law. Although mediation or collaborative law could have been cheaper, both options depend on a certain amount of trust between the parties and it is necessary for there not to be any threat of coercion.

Even in an instance where no physical violence has occurred, the threat of violence can be just as damaging and puts the victim at a disadvantage in any negotiation (notwithstanding the ongoing safety concerns).

As was suggested by one of our voters, DGVE law, Alice, might have been better served by having a trained domestic violence advocate work with her. Resources for domestic violence victims in Massachusetts are available here. Alice should have also discussed her case with potential legal aid services before assuming she didn't qualify. Resources related to finding legal counsel and/or legal services are available here.

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-she-said," which could come back to haunt you.

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 evidence that they are not in fear of imminent serious physical harm.