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.
Showing posts with label Family Court Judge. Show all posts
Showing posts with label Family Court Judge. Show all posts
Monday, October 15, 2012
Sunday, March 4, 2012
Can the Family Court amend a Restraining Order from the District Court?
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.
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