Can the Family Court amend a Restraining Order from the District Court?

In May, 2009 Norfolk County instituted a pilot program allowing 209A Restraining Order cases opened in a District Court in Norfolk County to be transferred to the Norfolk Probate and Family Court, if there is already an action pending in that Court.   We described the program in a post entitled:  One Court instead of Two for Domestic Abuse Cases in Norfolk County – A Pilot Program.

That pilot program ended 12 months later and was not renewed, which means that the courts do not currently allow the transfer of a 209A Restraining Order case from district court to the probate and family court.  This raises the question:

What happens if there is a 209A Restraining Order in a district court and a Divorce case between the same parties in the Probate and Family Court?


If there are no children in the case, the Probate and Family Court is unlikely to concern themselves with the Restraining Order case because the divorce is primarily dealing with financial issues which don't typically require direct communication between the parties.

However, in cases with children, there are many issues which can require parents to communicate and or have contact for visitation transitions.  Often-times restraining orders will initially include the children but later be modified to allow for parenting time.  In many cases of domestic violence both children an spouses require protection from an abuser.  However, there are also many cases which only involve threats or allegations relating to the spouses and the children are not involved in the allegations.

When an initial restraining order is entered in a District Court and the parties are also involved in a case at the Probate & Family Court relating to the custody or visitation with the minor children, it is likely that the Family Court Judge will be asked to enter a visitation plan.  The problem arises when the arrangements for visitation violate the existing restraining order.  In these cases the restraining order needs to be amended so there is not a conflict with the Family Court order.  The Guidelines for Judicial Practice: Abuse Prevention Orders (rev. Sep 2011) contain specific procedures for the Family Court to follow in these instances.

Pursuant to ADMINISTRATIVE ORDER 96-1, the Family Court Judge can exercise special jurisdiction over the district court case for the specific purpose of amending the restraining order to match the provisions of the custody order.  Once the Family Court Judge has chosen to exercise this special jurisdiction, which requires that the Plaintiff on the restraining order have notice and opportunity to be heard, the Court must follow the following procedure:

The Probation department in the modifying court shall cause the modified order to be transmitted by facsimile to the Probation department of the issuing court promptly to enable the Probation staff of the issuing court to enter the order into the Registry on the day on which the modified order is issued. Upon receipt of the modified order, the Probation department in the issuing court shall promptly provide a copy of the modified order to the staff or the Clerk or Clerk-Magistrate of the issuing court, who shall promptly docket and file the modified order. The Register of Probate in the modifying court shall cause the modified order to be mailed to the Clerk or ClerkMagistrate of the issuing court no later than three days after the modified order is issued.

Given how understaffed the courts currently are this is probably easier said than done, and if you are a party to such an action you should make sure that the restraining order is updated with both the issuing court and the police department before you act on the modified order. Otherwise you risk being charged with violation of the restraining order.

For more information about restraining orders in Massachusetts visit our new Restraining Order website, or schedule a free 1-hour consultation.

Mass Attorney General asking Federal Judge to declare DOMA unconstitutional.

According to a Boston Globe article, Massachusetts Attorney General Martha Coakley filed a request with the U.S. District Court last Thursday, February 19, 2010, to rule on the constitutionality of the Federal Defense of Marriage Act (DOMA). The reasoning behind the A.G.'s request is that DOMA forces Massachusetts to discriminate against same-sex spouses in order to maintain certain federal funding for programs like Medicaid and Veteran's burials.

These are only two examples of how DOMA affects same-sex spouses. Despite Massachusetts law granting same-sex couples the right to marry, there are Federal benefits that traditional spouses enjoy which same-sex couples do not because of DOMA. Many of these differences are related to tax benefits for spouses. For example, spouses can transfer property between each other without certain tax consequences where non-spouses cannot.

This can be a particularly difficult issue in same-sex divorces as it relates to retirement accounts. Because retirement accounts are defined by Massachusetts law as martial property, divorces often result in a non-taxable transfer of retirement funds between ex-spouses. When the division is completed by a Qualified Domestic Relations Order (QDRO) the transfer does not result in any tax consequences. But transfers between non-spouses of retirement funds are treated like a liquidation resulting in income tax and a tax penalty (if the plan participant is below retirement age). Since same-sex spouses are not spouses for federal purposes retirement account funds cannot be transferred without tax consequences.

Although you are unlikely to hear a lot of discussion relating to same-sex divorce in support of the same-sex marriage debate, the discrimination against same-sex spouses becomes even more evident when these spouses request the protection of divorce laws.

Even if you believe that states should have a right to decide the same-sex marriage issue state-by-state, it's hard to support discrimination by the Federal government of same-sex couples in the states that have already decided in favor of same-sex marriage. DOMA effectively throws the weight of the Federal government against same-sex marriage rather than remaining neutral on the issue. Good luck to the Mass A.G. in restoring at least some balance.