||For Immediate Release
New research shows bias in restraining orders
Milford, July 11, 2005 – A study of how one court in Massachusetts applies the abuse prevention statute (MGL ch.209A) as measured by the issuance of “209A restraining orders” has just been published in the June issue of Journal of Family Violence, an academic journal on domestic violence issues.
“A Measure of Court Response to Requests for Protection,” by the Fatherhood Coalition’s Steve Basile, examined the 209A restraining orders issued in Gardner District Court in 1997. The study reveals a clear double standard in the court response to alleged victims of domestic abuse/violence. In each of the benchmarks, women plaintiffs (victims) were treated more favorably than men, and likewise, male defendants were treated more harshly than their female counterparts.
“The message couldn’t be clearer. If you are a father suffering domestic violence, using the legal system to gain protection for yourself is a high risk proposition that may result in you losing custody and even contact with your children.”
─ Steve Basile, study author
Among the study’s findings:
When compared with other attributes of the litigants, sex was by far the greatest predictor of whether or not a restraining order would be issued and of the severity of the restrictions imposed on the defendant.
At ex parte hearings, where only the victim is present and the defendant is unaware of the proceedings, men were 240% more likely than women to be denied the immediate protection of an emergency restraining order.
Women were 38% more likely than men to be granted an emergency protection order at an ex parte hearing.
At follow-up 10-day hearings, when victims seek an extended or new restraining order, men were 383% more likely to be denied protection.
Women were 32% more likely than men to be granted a new restraining order when protection was pursued at the follow-up10-day hearing.
Overall, with and without children in common, men were 29% more likely to be evicted than women and 110% more likely to be evicted if they shared a common child.
The Fatherhood Coalition is especially concerned about the use of 209A restraining orders as “first strike” weapons in divorce/custody battles. The study also analyzed court response with respect to granting of custody of minor children when the litigants are parents.
Mothers were 288% more likely than fathers to receive custody of children as a direct provision of the 209A order. However, in the few cases where fathers received custody, which was only at ex parte hearings, none of the fathers secured long-term custody of their children at the 10-day hearing.
According to Basile, “The message couldn’t be clearer. If you are a father suffering domestic violence, using the legal system to gain protection for yourself is a high risk proposition that may result in you losing custody and even contact with your children.”
The first phase of the study was published in the Journal in February, 2004. That report provided a qualitative analysis of all of 382 non-impounded 209A restraining orders issued in the courthouse, examining the type and degree of abuses categorized by the sex and relationship of the litigants. For both phases, every available restraining order docket from 1997 was examined, to mitigate against any seasonal abnormalities or any accusations of selective sampling. Typically, domestic violence research explicitly excludes male victims of female domestic violence.
While the results of the first phase confirmed that women disproportionately seek legal protection from domestic violence, the qualitative examination of the data in the dockets, which includes the victim’s affidavit, showed that the nature of the abuse claimed was roughly similar between men and women.
However, the second phase reveals a disturbingly high correlation between the court decisions and the sex of the litigants.
The study analyzed the response of the court to requests for protection at ex parte hearings, where only the victim is present, and at the follow-up 10-day hearing.
209A abuse protection orders grant the “victim” enormous power over their alleged abusers. Provisions include removal from one’s own home, granting of immediate custody of minor children to the alleged victim with a consequent assignment of child support.
According to Coalition Spokesman Mark Charalambous, “It’s important to understand that a 209A order taken against a father, besides removing all legal and physical custodial rights to his children, also extends the no-contact provisions to those children.”
Since a violation of any of the provisions of a 209A order is a criminal offense subject to 2 ˝ years in jail and $10,000 fine, any contact a father may have with his children, direct or third-party or even unintentional, holds him criminally accountable. This is done without the criminal protections afforded defendants in criminal cases because the issuance of 209A order is civil, requiring only the minimal standard of evidence (“preponderance”).
“This is why a 209A restraining order is often referred to as the nuclear first-strike in the commencement of a divorce action,” Charalambous emphasizes.
The Fatherhood Coalition is supporting the “209A Reform Bill” (S965, H833), presently in committee, that addresses many of the law’s most serious flaws.
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Study link: http://www.springerlink.com/link.asp?id=h4r072303320355j
More study info: http://www.fatherhoodcoalition.org/cpf/Gardner_209A_study_index.htm
Study Wars: The Fathers Strike Back, by Mark Charalambous
For further information on the study and/or CPF/The Fatherhood Coalition: