Family Law FAQs
What is the Law About Restraining Orders in Massachusetts?
Restraining orders are a common aspect of domestic relations cases these days, and are a very significant and possibly damaging circumstance in a given case. Despite the perception of the unfairness of these orders, since they are initially given without the accused being present, they are necessary tools in combatting all-to-common domestic violence. Due process is ultimately not violated, because both sides will eventually be heard from. However, if misused, and they are often unfortunately used as a tactic, they can be devastating in impact to the defendant.
In the domestic relations context, the statute is MGL c. 209A, and these orders are commonly referred to as “209As”. Use of the statute requires blood relation, being within a “couples” relationship or having a child in common. The plaintiff/victim makes application for an order in either a District Court or Probate & Family Court. There very much can be a difference in how the judges of the two courts look at these applications – judges of the P&F Court perhaps having a more discriminating eye towards couples disputes since they regularly deal with divorces, but judges of the District Court also regularly deal with the more serious domestic violence crimes. In any event, before rushing to a judgment of an unfair process, I urge all clients to understand that the judges are hearing snippets of two people’s lives, with the spin of the event initially by only one side, and in a relatively short presentation, and are then called upon to make a very significant decision that may have life or death implications. They are very much compelled by human nature and the law to err on the side of caution. Ultimately, both sides are heard and if you are a wrongfully-accused defendant, you must go into these with confidence that the truth will win out. It usually does.
In making the application, the plaintiff makes out an affidavit describing the event at hand. The standard for granting an order is “an imminent threat of physical harm”. The “imminent” component means that the plaintiff should be seeking this order immediately after or very close in time to the event. If there is unwarranted delay, the threat can be viewed as no longer having imminence. Applications can be made during off-hours to judges on call, and if police respond to the event, they will advise the victim how to apply. The “physical harm” component of the standard should weed-out the mere name-calling incidents, no matter what bad words are used. The issue is whether there has been actual physical contact and harm, or whether the words used constitute a threat of physical harm. Throwing objects will likely meet the threat requirement. The affidavit, thus, needs to be carefully written and carefully reviewed.
The plaintiff will present that affidavit and make an oral presentation to a judge. The judge will then decide if the standard is met, and if so, the order will issue and be effective immediately. When served, the defendant will be removed from the home and be caused to surrender any firearms or firearms license. If the order came from the Probate & Family Court, orders regarding custody and support children may also be made. (District Court orders usually will not address these so as to encourage the parties to move the whole issue to the P&F Court where it likely belongs). A hearing with both parties present, known as the “10-day hearing”, will occur within 10 days. Defendants thus face being out of their homes for 10 days, but are able to make arrangements with the police to get their possessions. The defendant can obtain a copy of the plaintiff’s complaining affidavit. At the 10-day hearing, the judge hears both sides’ versions of the event, and as a consequence can vacate the order, extend the order or extend and amend the order. The continued existence of the order can obviously impact how a subsequent divorce or custody case unfolds. Likewise, misuse of this law can reflect poorly on the party seeking it as the custody case unfolds.
Another form of restraining order now exists to deal with situations involving non-relatives and non-intimate relationships. This is the harassment restraining order under MGL c. 258E. Perhaps to the Legislature’s surprise, it is becoming an unfortunately common tool in neighbor disputes. Such an order is obtained from the District Courts only. These orders can be granted where there is the threat of immediate physical harm similar to 209As, or the commission of certain other criminal acts, or three separate acts of harassment, acts which were willful and malicious, aimed at you, and which are both designed to and actually did cause you fear, intimidation, abuse or damage to property.
Both types of restraining orders are initially civil remedies. Violations of these orders, however, are criminal violations. Egregious and more serious acts can also be prosecuted as crimes under criminal harassment or domestic violence laws.
What is the Law About Child Custody in Massachusetts?
When speaking of custody of children, there are two forms:
- Legal Custody – meaning the ability to make the major decisions about a child. In a divorce situation, this will usually be shared. In an unmarried situation, until father is legally adjudicated to be the father (more than just being named on a birth certificate), mother has sole legal custody. But given the courts’ desire to have both parents involved, shared legal is also very likely in an unmarried situation. The key issue is whether the two parents can communicate and cooperate about the child and in the child’s best interest. If they can, shared legal will be the likely result. If not, the judge has to decide the reasons for the communication impasse, and award custody accordingly. Orders can be drafted that even where one parent does not have legal custody, access to and copies of medical and school records of the child can be provided.
- Physical Custody – meaning who the child lives with. This can be expressed as “primary” or “sole” with one parent. There is a trend towards shared physical custody, i.e. deviating from a more “traditional” 2/3-1/3 split of physical time.
- The term “visitation” and written “visitation schedules” are no longer in vogue. We now apply the term “parenting time” to each parent’s physical time with the child, and a “parenting plan” as the written expression of the arrangement.
What is the Law About Child Support in Massachusetts?
Child support will likely be involved in any divorce or unmarried custody case. Where there is no child support paid, there needs to be a finding by the Court that adequate provision for children is made by other means.
Child support is determined by a formula called the Guidelines, which apply to combined incomes up to $250,000. Above that amount, the Court has complete discretion in the amount of support. The word “guidelines” obviously does not mean cast in stone, and so the Court has some leeway on setting support. But for all practical purposes, the Guidelines amount will be the amount applied. Guidelines are calculated off of gross incomes (even though we live in the world of net income). Income is very broadly defined and will essentially capture all money one makes. The calculation starts with both parties’ gross incomes broken down weekly, with reductions for the weekly expenditure of either or both parties for medical and dental insurance and child care costs. The resulting adjusted gross incomes are added together, and a formula results in a total support amount for the child, recognizing that both parents have a legal obligation to support the child. A further adjustment will be made based on the number of children. The non-custodial parent will pay a percentage of the total child support to the custodial parent in the same proportion as his/her adjusted gross income bears to the combined adjusted gross incomes.
The Guidelines reflect a “traditional” custodial situation of primary physical custody with one parent, roughly a 2/3-1/3 split of time. The Guidelines revisions in 2013, recognizing the growing trend to shared physical custody, now allow for various other calculations to be made that reflect the actual split in time. It works out, then, that the more physical custody one has, the less support might end up being paid. But even in a true 50-50 physical custody arrangement, the wealthier parent will still pay support to the other, albeit in a lesser amount under the traditional custody arrangement.