An abuse of the system?

Fathers fight restraining order law

By Julie Jette, Fitchburg/Leominster Sentinel & Enterprise State House Bureau


Sunday, June 6, 1999

BOSTON -- Massachusetts' restraining order law was adopted two decades ago to give abused individuals, usually women, a tool with which to protect themselves from dangerous partners.

But many of those accused abusers, usually men, say that tool is too often used as a blunt instrument that destroys fragile families and ruins the lives of innocent men.

There's no question that the political tide continues to flow toward stiffening laws to prevent domestic abuse. But at least one group representing aggrieved fathers is pushing for a bill that would significantly alter the state's abuse protection law, chapter 209A.

Coalition seeks access to orders

By Julie Jette

Sentinel & Enterprise State House Bureau

Sunday, June 6, 1999

BOSTON - After a father's rights group sought access to information on restraining orders, the Attorney General files a bill limiting access to the information in those files.

A member of the Fatherhood Coalition, a statewide group, is surveying all the restraining orders issued from Gardner District Court in 1997. The survey will include an analysis of the information contained in the requests for the orders, along with interviews with those who made the requests.

But the Attorney General's office has filed a bill that would prohibit the public's access to the addresses of those seeking protection under the state's abuse prevention statute, chapter 209A.

Meanwhile, at the request of the Senate, the Secretary of State's office has proposed a bill that would set up a post office box that individuals who fear for their safety could use as their legal address.

Steve Basile, a Fatherhood Coalition member who has a master's degree in mathematics from the University of Massachusetts at Lowell, requested and was given the information under the state's open records law.

The coalition is looking for empirical evidence to support or dispute its theory that restraining orders are frequently used as a weapon in custody battles.

Judy Beals, chief of the Attorney General's victim compensation and assistance division, said that the Attorney General's legislation would not prevent the public from getting information about restraining, but simply keep the addresses of alleged victims of domestic violence confidential.

"I don't think any victim expects that by going to court she's going to get a phone call from a group that opposes these orders," Beals said. "It doesn't prevent anyone from accessing statistical or general information about domestic violence, or even quite specific information."

The Secretary of State's bill would provide protection for rape victims, stalking victims and victims of domestic abuse, according to Secretary William F. Galvin.

"It allows somebody who has a reason to create a new address from someone they're in fear of," Galvin said. That person could not be a creditor or a pesky donation solicitor.

Mail would be forwarded to another post office box where the individual lives. Legal papers could be served through the office. "They'd still be accessible, but only through this office," Galvin said.

 

Currently, the law enables people to seek a restraining order against someone for attempting to cause or causing physical harm, for forcing sex on them, or for placing them in fear of "imminent serious physical harm."

Bill filed on behalf of coalition

Restraining orders can require someone to refrain from abuse. They can grant temporary custody of minor children to the person seeking the order. They can force the accused out of the house and require that he pay medical and legal expenses incurred as a result of his actions.

After a temporary order is issued, a judge must hear the case within 10 days to determine whether or not the order should be extended or vacated.

The bill filed on behalf of members of the Fatherhood Coalition, a Massachusetts fathers' rights group, would define abuse as repeated occurrences of intentional physical harm or forced sexual relations. It would require that contact in violation of the restraining order be intentional, not accidental, and it would subject anyone making false allegations in seeking a restraining order to the penalties associated with perjury.

The bill would also allow those who are served with restraining orders to continue to see their minor children. Currently, they are usually prohibited from having contact with children if the accuser has temporary custody.

Although restraining orders can be and are sought by men, they are most frequently sought by women. And the debate over changing the law is framed by the "he said, she said" nature of domestic disputes.

Mark Charalambous of Leominster, a co-founder of the Fatherhood Coalition, said, "The whole law needs to be totally scrapped and rethought and taken from a different perspective ... It is simply a blank check, and it is causing havoc."

'The whole law needs to be totally scrapped and rethought.'

Mark Charalambous of Leominster, co-founder of the Fatherhood Coalition

While Charalambous said he believes that people in real physical danger from their domestic partners have a right to seek protection, he charged that too frequently, restraining orders are used frivolously or as a preemptive strike in a custody battle.

He said a typical pattern is, "She gets a restraining order, that gives her temporary custody, that becomes permanent."

Charalambous also argued that the fact that someone can seek a restraining order against someone else solely because she is afraid for her safety -- whether or not the accused has committed or threatened violence -- is simply too light a burden of proof.

"What it comes down to is the state of mind. The victim says 'I thought he was going to commit a crime,' " Charalambous said. "People are going to be prosecuted for what other people think they might do?"

Judy Beal, who is chief of the Attorney General's victim compensation and assistance division, said that the proposed bill "would gut 209A; it would basically restore the balance of power to abusers."

In particular, Beal objects to the portion of the bill that allows restraining orders to be issued only after repeated occurrences of abuse.

"Can you imagine a law that says 'You can only prosecute someone for stealing after they've entered into and stolen from your house twice?' " Beal said.

Charalambous said he is open to changing that section of the proposed legislation, but also feels that the level of violence and the circumstances surrounding it should be considered when a restraining order is issued.

Beal also said that while the burden of proof on those seeking restraining orders is fairly light, it need not be too heavy because restraining orders are civil, not criminal, legal instruments.

"These are civil orders; if you comply with them, nothing happens to you," she said.

But many men emphatically argue that is not the case. And some lawyers practicing family law agree.

"To me, (a restraining order) has some quasi-criminal implications," said Sheara F. Friend, an attorney based in Needham who has represented both abused women and men accused of abuse.

While Friend said that restraining orders are necessary to protect women in many cases, in many other cases they are misused by spouses seeking an upper hand in custody battles.

Based on her experience, she estimated that as many as half of those issued are taken out against people who don't really pose a threat to their estranged partners.

"If a woman or a man has a restraining order out, there's an immediate presumption that the accused isn't going to get custody of the child," whether or not the abuse is ever proven, she said.

Friend said she was involved in one divorce case where a wife offered to have a restraining order against a husband lifted if he agreed to her child support and alimony requests.

She also said that the abuse of restraining orders in custody battles has become so prevalent that she and other attorneys sometimes recommend that clients take out their own restraining orders if their spouses have already served them with papers.

"That is one of the strategies that has to be used given the presumption of custody," she said. "Unfortunately, I recommend it sometimes, depending on the case."

Those who want to keep 209A substantially the way it is say that while there may be cases of misuse, it is more important that the protections remain in place.

State Rep. Colleen Garry, D-Dracut, a member of the House Judiciary Committee which is considering the Fatherhood Coalition's bill, said that it goes too far. "I think that in some cases (restraining orders) could be something that is misused by the legal profession, but I still think that we need to keep these people safe," she said.

Garry said that judges should exercise their authority to more thoroughly examine abuse allegations when someone seeks to extend a restraining order.

But she admitted that judges are in the difficult position of predicting the future when determining who poses a threat to their former domestic partner.

"I don't know if the magistrates or the people hearing these orders are afraid not to give them. We've heard the nightmare stories of people who have been killed, and [judges] don't want to turn down someone and have that person killed the next day," she said.

Friend suggested that a two-tier restraining order system could be established to both protect those who are truly in danger and establish a separation order for those who need space to begin divorce proceedings. The second kind would not give the parent with temporary custody a better shot at permanent custody.

She also said that there should be well-trained investigators working for the court to determine when abuse is truly a factor.

But she and others are doubtful that the bill, or even a watered-down version of it, will pass in the current political climate.

"I think there's probably a large support network (for altering 209A) within the domestic relations bar," she said. "But how many lawyers are willing to put their head on the chopping block because it's politically incorrect is another question."

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