By Attorney Christine Sullivan
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.