Categories

Archives

The Abuse of Restraining Orders to Gain an Advantage in Child Custody Proceedings

By Attorney Christine Sullivan

restraining-order

The husband and wife both love their children and spend as much time with their children as possible. There has never been any physical or mental abuse in the marriage, but the marriage simply isn’t working. After a stressful weekend of arguing, the husband tells the wife that he wants a divorce. That same afternoon, the husband is served with a restraining order, alleging that he has physically abused his wife and his children.

He has five (5) minutes to gather some personal belongings from his house, while being accompanied by a police officer watching his every move. Other than what he can put in a bag in five (5) minutes, the husband has only the clothes on his back and no place to go. Worst of all, his children, the ones that he loves more than anything in life and that he is used to seeing every day, have now been ripped away from him for at least ten (10) business days and he is powerless to do anything about it.

How can this happen? How can someone go from a loving, doting parent in the morning to being an alleged criminal by the afternoon, having his children ripped away without the ability to defend himself for ten (10) business days? In the story described above, as a result of the husband’s request for a divorce, the wife fabricated allegations in a local district court to obtain an advantage in upcoming child custody proceedings. Massachusetts General Laws, Chapter 209A, entitled “Abuse Prevention”, is the applicable law governing the issuance of restraining orders in connection with domestic abuse.

The statute permits the court to “enter such temporary relief orders without notice as it deems necessary to protect the plaintiff from abuse…” in a domestic setting. The key here is the language “without notice”. The defendant then has an opportunity to dispute the continuation of the temporary order “no later than ten court business days after such orders are entered” .

While a discussion on the effectiveness of restraining orders in preventing domestic violence is outside of the scope of this article, there is no doubt that there is a need for protection of true domestic violence victims, and the use of a restraining order in those situations can be potentially life-saving. The problem occurs when the “Abuse Prevention” statute is itself abused. Given the severity of domestic violence in today’s society and the need to protect true victims of domestic violence on an emergency basis, the courts are forced to err on the side of caution and give credence to the story of an allegedly aggrieved victim who requests an emergency restraining order.

Thus, a person can simply walk into court, fabricate allegations of abuse without any supporting evidence (other than the statement of the “aggrieved” person) and obtain a temporary restraining order, thereby forcing their husband or wife out of the home and away from the children with no opportunity to defend himself or herself for ten (10) business days! While that may seem like a short amount of time, it is a lifetime for parent who suddenly can no longer have contact with his or her children for those ten (10) business days.

While eventually the truth may come out, the falsely accused husband or wife will spend weeks defending himself or herself against the false allegations, not only in criminal court (where most restraining orders are issued), but also in the family and probate court where the divorce and child custody proceedings are handled. In the end, it may be months before the falsely accused parent is permitted to see or have contact with his or her children! At that point, there is no telling what type of damage may have been done to the parent/child relationship. Thus, the restraining order is often times used as a legal tactic to gain an advantage in child custody proceedings. It is a page out of the dirty lawyer’s handbook.

What can be done about this abuse of the system? Plainly and simply, there needs to be law in Massachusetts that makes it a crime to fabricate allegations of abuse. There are other states that are considering this very proposal. At the time of the writing of this article, the only remedy that the falsely accused person has in Massachusetts is to commence a civil action for slander, libel and/or defamation of character against the person making the false allegations. In the majority of cases, this remedy is completely ineffective, as a civil lawsuit would take many years, cost thousands of dollars in attorneys’ fees and, in the end, most likely won’t be collectible, as most accusers do not have sufficient assets to cover a civil judgment. Opponents of this position argue that it will deter real victims of domestic violence from obtaining restraining orders for fear that they themselves could face criminal prosecution. This argument falls flat, however, as actual victims of abuse will have sufficient evidence to support their claims. In addition, it should be noted that the time spent on fabricated allegations of abuse actually deludes the effectiveness of restraining orders for the actual victims of abuse.

One last note-I know what you are thinking ladies; her story is so stereotypical…the husband is the one who is making the money, and it is the wife who is falsely accusing the husband. Well, in reality, in most cases it is the wife who makes the complaint of abuse; however, in the actual case that I handled (on which this article is based), the roles were reversed-it was the wife who worked full-time and it was the husband who fabricated allegations of abuse by the wife against the children, thereby depriving the children of their mother for several weeks. Thus, no matter what your role is in a relationship and regardless of what type of relationship you may be in (whether it be a heterosexual or same-sex relationship), you may become the victim of the abuse of restraining orders unless and until the law is changed.

 Christine Sullivan is the founding partner of The Law Offices of Christine Sullivan in Haverhill, Massachusetts. The firm is a full-service law firm, serving client’s needs throughout Massachusetts in family, corporate/business, real estate, personal injury and criminal law. Prior to building her own law practice, Christine was senior counsel in the corporate department at a large Boston law firm for over twelve (12) years. For more information or to contact Christine, please visit www.attorneysullivanhiggins.com.

 

ValleyPatriot

ValleyPatriot

The Valley Patriot is a free monthly print newspaper serving Northern Massachusetts, and Southern New Hampshire. The print edition is published by the 10th of each month and is distributed to 51 cities and towns.

More Posts

4 Responses to The Abuse of Restraining Orders to Gain an Advantage in Child Custody Proceedings

  1. fredy Reply

    February 7, 2016 at 5:12 AM

    That it’s happening to me on a short relationship wer she its 15 years older than me, I grow up with no dad. ?can’t Californian courts let me be a father,?

  2. Dan Reply

    January 1, 2018 at 12:00 PM

    I just went through this. I filed for divorce against my wife for adultery. When she realized that she was likely to get nothing from me financially and that both my kids said that they wanted to live with me, meaning no child support, she went down and filed a request for a protective order.

    I was at home alone when the sheriff showed up. I had 5 minutes to get out. For 12 days I was at risk of arrest if my children called or texted me. Indeed, my wife tried to have me arrested because she BELIEVED that my daughter texted me. I had to live in a hotel, eat all my meals out and buy new clothes. That 12 days cost me, with legal costs, over $7,000.

    The same judge extended the protective order for 3 months but removed the children and allowed contact by email or text. Still could not go home. My 17 yr old daughter knew the PO was a load of bull and she moved out of the house the day the judge extended the order and she has refused to talk to her mother since. My daughter explained to her 9 yr old brother exactly what was happening. My wife had told him I was on a business trip and I was just being a jerk by not calling. He is now really angry at his mom. My wife also used this time to dispose of all of our marital assets. She sold or gave away the vast majority of our furniture and she gave away most of my clothes and my daughters clothes. She gave my sporting shotguns (trap and skeet) to her boyfriend.

    Then, she tried to have me arrested FOURTEEN times. Included in this were claims I burgled the house and that I had blocked in her car when I picked up my son. She also tried to have me arrested at my sons soccer game when she showed up and told me to leave. The police had to explain to her four times that she cannot walk up to me wherever I am and tell me to leave. Not one time did the police arrest me. THEN..she goes and files a complaint with a magistrate and gets a warrant for my arrest based solely on her word that I violated the protective order. That is a criminal offense. Another $2,000 in legal bills and a night in jail.

    Ultimately, at the appeal, the judge reprimanded her and her lawyer for abusing the process to get an advantage in the divorce. The first thing out of my wifes mouth on the stand that day was “This is about a divorce.”. You should have seen her lawyers face. I won the appeal but still had to face the criminal charge. She also filed two show cause motions with the court in addition to the criminal warrant. We went in front of the same judge that originally issued the protective order. She was not pleased. She said that even if I had done what my wife claimed on the warrant, it was not a crime. Then she struck 16 of the 18 items my wife had on her show cause motions and said that there was no basis to believe that the other two occurred.

    The protective order process needs to be amended to prevent this kind of abuse. Apart from the two lawyers I have for my divorce, I have friends who are judges and lawyers and all of them tell me that divorce lawyers regularly hint to their clients that a protective order will help with custody and control of marital assets. Courts need to look hard at requests when there is a divorce pending and particularly if there is no police report or prior history of abuse. In my case, the only police calls were me on her and my daughter on her mother. There was no record of a history of abuse and even the situation she used as the basis ( I stepped between her and our daughter because my wife was about to clock my daughter) for the protective order she did not claim I hit her, only that she felt she was at risk and felt afraid. That was all she needed.

  3. Todd Bord Reply

    May 2, 2018 at 1:25 AM

    It is a very horrible procedure that has been used by many district attorneys, especially in Newburyport. Much like the ” Witch Hunts” and clown rooms of the 80’s that Martha Coakley built a career on. I have seen and been around the now adult victims of these clown rooms. The damage the District Attorneys have done to human beings is irreparable and as bad as the most horrendous crimes.

  4. Eric Bonetti Reply

    July 2, 2018 at 12:20 PM

    Misuse of restraining orders is not limited to divorce cases. Here is what my mom wrote about my case:

    Episcopal priest Bob Malm, rector of Grace Episcopal Church in Alexandria VA, has filed a bogus restraining order against my son.

    In his filing, Malm claims that a blog I write, located at http://www.gracealex.net, somehow threatens him because I, and two female family members, use the handle, “The Killer B’s,” on the site. The moniker, which is the name of a classic rock band in Richmond VA, is one we use because, like the band members, we all have names that begin with the letter B.

    Malm also knowingly takes other words and phrases out of context. For instance, his campaign of shunning, which he directed at my son after he complained about questionable business and governance practices in the parish, has been described as “psychological torture,” by experts. Yet he claims that somehow using those words is a threat.

    The trial court judge listened to a whole lot of bull from Malm about people allegedly being mean to him and more, none of which has anything to do with a restraining order. Malm also acknowledged that my son has never threatened him. Yet the judge granted the order anyway.

    The case is going up on appeal, but regardless of the outcome, you should know the facts about Bob Malm’s behavior. To make matters worse, the Episcopal Diocese of Virginia so far is backing Malm and refuses to address his bullying behavior.

    Meanwhile, Malm has taken to calling my son’s employer, his current church, and even family friends in an effort at harassment and intimidation. Malm’s wife, Leslie, has ignored a previous written request for no further contact on at least three occasions. Starting to sound to me like they are stalkers.

    Oh, and I am dying of emphysema. Needless to say, this is the last thing I or my family need to be dealing with right now. The fact that Bob Malm and the Episcopal Church think it’s okay to bully a dying woman and her family tells you everything you need to know about them.

    Shame on the Episcopal Church for allowing such outrageous and appalling behavior by a priest.

    PS [Bob’s wife] Leslie Malm has started telling people that my son has admitted that my blog is his, and that he has claimed I am 92. Both statements are false.

Leave a Reply