Restraining orders and custody - US experience

The link between domestic violence and custody issues is not new, the Domestic Violence Act simply strengthens the connection. The Act may not be of very great significance, however, as claims of violence or of fear of violence are sufficient on their own to significantly affect the final awarding of custody. On that point, here is some US information from Alan Finger, (Fathers' Rights and Equality Exchange, Massachusetts co-coordinator). My comments, where added, are in square brackets [ ]:

From the Massachusetts Bar Association Newsletter, June/July 1993 President's Message entitled "Speaking the Unspeakable":

The facts have become irrelevant. Everyone knows that restraining orders and orders to vacate are granted to virtually all who apply, lest anyone be blamed for an unfortunate result. As one judge patiently told me when I appeared in opposition to the extension of an order to vacate, 'You don't understand. I _have_ to grant these.'

A side note: The writer is now my attorney. When I asked her about her remarks, she groaned and said she "didn't want to talk about it." I got the impression her herasy earned her an intense attack from her liberated "sisters".

From "Litigating Domestic Abuse Cases under Ch. 209A" - Massachusetts Lawyers Weekly Oct. 23, 1995:

The plaintiff seeking a Chapter 209A temporary order without notice to the defendant must demonstrate to the court a substantial likelihood of immediate danger. As a practical matter, however, the standard may be virtually meaningless. Widespread media attention to, and public scrutiny of domestic abuse cases understably has resulted in a better-safe-than-sorry approach in most cases, and ex parte restraining orders are routinely granted.

[In a similar vein, Judge Brown in New Zealand has this to say on s.16B(3) of the Guardianship Act linking violence to custody and access issues: The Principal Family Court Judge has authorised me to record his opinion that judicial treatment of the s.16B(3) presumption is likely to be conservative. More details here.]

...

As a practical matter, however, the court is mindful of the consequences of denying a restraining order if the plaintiff is later injured by the defendant. Thus, the mere allegation of domestic abuse, for all practical purposes, may serve to shift the burden of proof to the defendant.

.....

The types of relief that can be granted by the court at the ex parte stage can have profound ramifications for a defendant. The court can order the defendant, among other things, to vacate the household immediately and to refrain from contact with the plaintiff and minor children in any manner, even through third parties. The court can also award the plaintiff sole legal and physical custody of any minor children as well as temporary support (note: there's also a checkbox awarding monetary "compensation.").

Thus, a plaintiff who is, or is certain to be, involved in divorce proceedings can swiftly and effectively force the defendant to vacate the home and thus can gain immediate custody of the minor children.

.............

The SJC recently ruled that in a Chapter 209A proceeding 'the rules of evidence need not be followed provided that there is fairness in what evidence is admitted and relied on.' Frizado v. Frizado, 420 Mass. 592, 597-598 (1995). ... It should be noted that the SJC has stated : '[t]here may be circumstances in which the judge may properly deny the right [to cross-examination] in a G.L.c. 209A hearing...' Frizado v. Frizado, supar at 597.

The article concludes as follows:

Given that under Chapter 209A there is virtually no discovery, the rules of evidence may not be applied, the right to cross examination may be limited, the time for trial preparation is 10 days or less and, as a practical matter, the defendant may shoulder the burden of proof, defense counsel faces a daunting and, arguably, unfair battle.

However, where the allegation of abuse is contested, defense counsel must carefully prepare and vigorously present a defense because of the far-reaching and, in some respects, irrevocable, adverse consequences to a defendent resulting in the issuance of a Chapter 209A restraining order.

For those of you unfamilar with our infamous 209A law, the allegation of abuse or simple "fear of abuse" gets the accuser an instant vacate order, custody of the kids, guidelines child support, and monetary compensation -- its all little checkboxes on the form. No "pains and penalties of purjury signature is required." The now homeless defendant is not provided with the charges and has 10 days to find a lawyer, come up with a retainer, and prepare a "vigorous" defense.

About 50,000 of them were issued last year (1995) -- 85% to women. My understanding that those issued to men were primarily against other male family members. The 50,000 restraining orders were issued in a state with a population of about 5.5 million and an estimated 1 million men and women living together.

Stuart Birks

22 January, 1996