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.

Self-Employment Income & Child Support: Massachusetts vs. the National View

We are pleased to link to an Article published by a colleague of ours, Jason V. Owens, Esq. of Stevenson & Lynch, P.C., in the June 2011 edition of the Suffolk Journal of Trial & Appellate Advocacy entitled Determining Self-Employment Income for Child Support Purposes: the Massachusetts View Compared with the National View. The article focuses on the thorny problem of calculating “income” for child support purposes in cases involving self-employed parents who operate a business over which the parent exerts financial control.

Much of the article explores the differences and similarities between “business income”, as defined by federal tax law, and “self-employment income”, as defined by child support guidelines in Massachusetts and other states. Much of the impetus behind this “compare and contrast” approach is practical. Determining a business owner’s “income” for child support purposes almost always begins with an examination of the business’s state and federal tax returns. The challenge for attorneys, parties, and judges often lies in determining which sections of the business’s tax returns can be applied to the child support analysis – and which sections must be carefully scrutinized or rejected altogether when analyzing the return from the child support perspective.

How does “business income” on a tax return differ from “self-employment income” on a financial statement filed in a child support case? Which tax deductible business expenses are most likely to be abused and manipulated by a self-employed parent? When can a business expense be legitimately deductible under the tax code but countable as “income” under child support law? The Article explores the legal underpinnings of these and related questions, identifies and pinpoints the prevailing law and national trends, and acknowledges the ambiguities and approaches taken among the states.

Reprinted with permission from Stevenson & Lynch, P.C.

Is your Lawyer on Speed Dial?

If someone claiming to be an innocent citizen had their criminal attorney on speed dial you might wonder about their true proclivities. Well the same is true if you have your divorce attorney on speed dial, but claim you don't want a high conflict divorce.

In the majority of divorce cases there is a lot of waiting time: waiting for documents, waiting for deadlines, and waiting for the next court date. Unfortunately, this is just the nature of how a court process works, and unless you can reach a full agreement with your soon-to-be ex-spouse then you will spend time waiting. During that waiting time, you can either be patient or you can call your attorney every day creating issues and problems that really didn't need your attorney's attention.

It's important to remember that every time you call your attorney there is a cost, and what you're calling about may not be worth that cost. It's also important to remember that you hired your attorney to deal with your legal problems. If you are calling about an emotional problem, for example, your attorney is not trained to deal with that issue. You should call a therapist or other trained mental health professional to help you with emotional problems.

If you feel the need to call your divorce attorney every day, then I encourage you to think about what you are accomplishing with these phone calls. Are you really using your attorney's services efficiently? If you're not sure, then consider waiting and calling your attorney when you have multiple issues to discuss instead of just what's on your mind at that moment.

Should your Mediator draft Court Paperwork?

Once an agreement is reached, a mediator who is also an attorney can help the individuals prepare court documents, such as the Separation Agreement. If you need assistance preparing your Financial Statement, or you need advice as to whether an Agreement is in your best interest then you should consult with an individual attorney. Although, a Mediator can help you prepare an Agreement, they cannot provide you with individual legal advice.

Some attorneys do not believe it is appropriate, or "kosher", for attorney/mediators to prepare any court documents because it is too close to the services performed by individual legal counsel. At Kelsey & Trask, P.C. we assist our mediation clients in completing the necessary court forms to ensure that they have been adequately informed about how to successfully present a Joint Petition for Divorce. We believe the goal of a divorce mediation is to reach this successful conclusion and part of that is correctly filling out a Joint Petition for Divorce and the appropriate and required pleadings.

For other opinions on this issue check out the Email Exchange entitled Is it Kosher for an Attorney/Mediator to Draft Court Paperwork for Clients? located on page 22 of the Spring 2010 issue of the Family Mediation Quarterly.