One Court instead of Two for Domestic Abuse Cases in Norfolk County – A Pilot Program

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.

What is the Automatic Restraining Order (Supplemental Probate Court Rule 411)?

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.

What is Nesting and Why Would I try It?

A parenting plan which is becoming more popular among divorcing and separating parents is called "nesting."

Nesting is when the children stay in the home and the parents move in and out according to a parenting schedule (rather than have the children travel back and forth to separate homes.

The main benefits of nesting are as follows:

1. Rather than create greater stress for the children by making them travel and sleep in a new place, while they are still getting used to the idea that their parents are separating, we force this stress on the parents. Although not ideal in either situation, the argument is that if either the children or the parents are going to be inconvenienced it makes more sense for that burden to fall on the parents (at least while it is practical). After all, the parents are the ones who decided to get divorced, not the children.

2. It allows for greater flexibility in designing a settlement of a case. By not forcing one spouse out, we haven’t made any irreversible decisions about living arrangements, which more realistically should be based on who can afford the home and not on who has the most reason to leave right now. It also avoids the pain and animosity that comes with a Motion to Vacate. In situations that rise to the level of needing a Restraining Order, the first consideration should be safety. But if the only issue leading to the Motion to Vacate is tension between the parties which is affecting the children, nesting can resolve that without having to brand one party the "bad" one.

3. If parents have available temporary housing for their non-parenting nights then nesting can be cheaper than immediately having to support two full-time households.

The downsides to nesting are:

1. Since it is not a permanent solution, spending too much time working out a nesting plan could be considered wasted cost. The simple fact that it is not a permanent solution could keep the parents from moving towards final resolution.

2. If parents don’t have available temporary housing then nesting could require three households instead of two, resulting in increased cost.

IF you agree to a nesting arrangement the key is still a parenting plan that makes sense for the children and their schedules and the parties' work schedules. But if you can reach a mutually agreeable parenting plan, nesting can be a useful tool in moving a case forward with less animosity and less stress on the children.

Combating Domestic Violence in the Workplace

President Obama recently issued a Memorandum to the heads of the executive departments and agencies regarding Domestic Violence in the workplace.  The memo requires the Office of Personnel Management to establish policies to better assist victims of domestic violence who are federal employees.  According to the memo, the CDC estimates that $8 billion dollars in productivity and health care costs are lost every year due to domestic violence.  This is in addition, of course, to the personal and family losses that are also caused by domestic violence.

We often forget that the President is not just a political, foreign and domestic leader, but that he is also the C.E.O. of the federal executive branch, which, including the armed forces, employs more than 4 million american citizens.  Therefore, the policies of the president's administration on issues such as domestic violence affect a large percentage of the american workforce.

Specifically, the memo requires OPM to issue guidance on policies

"to prevent domestic violence and address its effects on the Federal workforce. The guidance shall include recommended steps agencies can take as employers for early intervention in and prevention of domestic violence committed against or by employees, guidelines for assisting employee victims, leave policies relating to domestic violence situations, general guidelines on when it may be appropriate to take disciplinary action against employees who commit or threaten acts of domestic violence, measures to improve workplace safety related to domestic violence, and resources for identifying relevant best practices related to domestic violence;"

While it remains to be seen how this will be implemented (especially in an election year), the goal of addressing all of these issues with directed policies is commendable, and should be a model for all employers.  Not only will having policies in place to address domestic violence help your staff know what to do in these situations, addressing the issues will result in a safer and more productive work-force.

If you want to learn more about the resources available to help domestic violence victims in Massachusetts check out these resources available on the Massachusetts State website, and seek help.  If you or someone you know suffers from Sexual or Domestic Violence, call the National Domestic Violence Hotline at 1-800-799-SAFE for immediate assistance.

For more information about Abuse Protection Orders in Massachusetts, visit our Restraining Order webpage.

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.

Question of the Week: What is an Abuse Prevention Order?

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.

The Judge is Watching You!

When presenting at a Motion for Temporary Orders, Restraining Order, Motion to Vacate, or similar hearing the Court will typically hear argument from parties or counsel without a full evidentiary hearing. This means that the Judge will make a decision that could significantly affect your life after having only 10-15 minutes to learn what is going on.

I tell clients to pay attention to everything the Judge does during that hearing to get a clue as to what the Judge might be thinking and how they might rule. When they are looking at you, when they are writing, and what questions they ask, are all clues as to what is important to the Judge.

Similarly, the Judge is watching everything you do during that hearing. Since the Judge only has 10-15 minutes to assess your credibility as a witness everything you are doing matters as well. Judges are not just listening to what you say, but how you say it. In addition, the way you react to the allegations of the other party can be crucial to your case. For example, if a hearing is about your inability to control your temper and you react to every negative comment by the opposing party by whispering to your attorney, or shaking your head, then you are showing the Judge that you can't control yourself. We speak volumes with our body language and how we carry ourselves. In the short amount of time the Judge is trying to get a feeling about you everything you say matters, whether you say it literally, or you say it indirectly with your body language.

Can a Restraining Order be Permanent?

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."