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.
Custody of a child can be held by a third party as well. Another relative, often grandparents, can petition to become the legal guardians of a child, upon a showing that both parents are unfit or by voluntary agreement with the parent(s). This is common when young parents are dealing with substance abuse issues. DCF, if it becomes involved and physically takes the children, assumes legal custody unless and until another guardian is appointed. Physical custody, under DCF’s status as legal custodian, will be done with either a family placement or a foster placement.
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 2018 Guidelines give the Court leeway to determine if and how overtime, bonuses and second job income will enter the calculation. The system does recognize the need to have a second job to make ends meet.
The calculation starts with both parties’ gross incomes broken down weekly, with reductions from gross income for the weekly expenditure of either or both parties for medical and dental insurance and child care costs, and then a later adjustment against the initial child support amount for these same costs based on the relative percentage of them each party bears. 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 2018, recognizing the growing trend to shared physical custody, now allow for a calculations to be made that reflect an equal 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.
Child support is not taxable income to the recipient. It is not deductible by the payor.
Can You, as Victim, Stop a Criminal Domestic Violence Case in Massachusetts?
A common question that comes up on Q&A sites I participate in is when someone asks if they can stop a criminal proceeding they started with a call to police. The usual context is a victim of a domestic violence situation not wanting to get their significant other in trouble after later reflection. The short answer is no, you cannot stop the process simply at your request. Once the criminal process is started, decision-making is solely in the hands of the police and/or prosecutor. Of course, given the high burden of proof required for conviction, your lack of cooperation or lack of desire to proceed as victim and perhaps sole witness can influence the decision to proceed with an investigation or prosecution. You can make your wishes known. But understand that the ultimate decision is not yours. You can be compelled to testify and especially if there is evidence independent of your testimony, the prosecution can certainly proceed and will do so if the offense is serious.
I am not advocating that victims of domestic violence be reticent to contact authorities. Quite the contrary. However, people should be aware that the concept of individuals “pressing charges” does not mean the individual controls the process. Once that call to police is made, the process indeed takes over.
I Want to Sue DCF!
A common sentiment heard when dealing with the Dept. of Children & Families (DCF) is the belief that the system is unfair, and DCF should be sued to stop it. Can you sue DCF? Yes. Should you? Usually there is no grounds to do so.
DCF is not the evil empire many on the wrong end of its investigations believe it to be. DCF is asked to resolve difficult problems not of its making. Frankly, before making complaints about the agency, many people ought to first look in the mirror. DCF is generally under-funded, under-staffed, and over-worked, but it is not roaming around looking for new cases to handle or seeking to make your life miserable. DCF get cases because there is an issue that someone has reported, either a voluntary reporter (family member or friend), or a mandated reporter (someone who has no choice but to call if there is a suspicion of harm – police, school personnel and medical personnel). Many cases get “screened out” after the initial inquiry. More serious matters result in cases opened, and generally if that happens, there is cause to do so (in answer to the many comments that intervention is unjustified). Can reporting be abused by someone with an axe to grind? As with any legal proceeding, of course, but the false nature of complaints usually reveals itself early on.
DCF cites parents for either abuse or neglect, the definitions I will not go into here. But a surprising result to some parents is them being cited not because of their abuse, but that of their significant other. Allowing the children to be subjected to an abuser can be, and commonly is, found to be a form of neglect. Parents in this situation have a simple choice – put the kids first or the relationship with the abuser first.
DCF is powerful and can take your children away if the circumstances warrant. Similar to the restraining order where there can be action first and a hearing later, due to the primacy of the protection of children from harm, due process considerations are met after the fact with a subsequent court proceeding, usually in the Juvenile Court. Always seek out an attorney in these matters, one experienced in dealing with the agency and custody matters. An administrative appeal process with DCF also exists. If taking the children away has occurred, other family members should step up and seek guardianship or foster placement as an alternative to third party foster care. Whether a guardianship or placement with a relative is appropriate depends on the usual “best interests of the child” standard applied in custody cases, and the nature of the relationship between the relative and the parent. Blood relation is not a guarantee of placement, especially if the relative lives in the same household as the parent and thus may be part of the complained-of behavior or if the relative is, or could become, an enabler of the parent’s bad behavior.
Whether or not a child is removed from the home, the parent in an active case will be given a service plan – tasks to do, like classes and counseling. Despite how it may seem at the darkest point of the process, the goal of DCF is to keep and reunite children with their family. Remember that, but also remember that if you can’t deal with your demons, biology is no automatic entitlement to parenting. When receiving a service plan, the advice is simple – comply and cooperate. Push back if you have to on a requirement, but not in an antagonistic and hostile way. You will definitely get more with honey than vinegar in these situations. Reach out to your case worker’s supervisor if necessary. But the common questions about suing the agency and civil rights violations, etc. will usually get you nowhere. Put the child first, always, and you’ll get thru the process.