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Forman: Restraining Orders Abused By Angry Spouses
Josey1
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Forman: Restraining Orders Abused By Angry Spouses
By Preston P. Forman - Standard-Times
One of society's chief weapons in the battle to halt domestic violence has become a weapon of a different sort in the hands of people involved in divorce and custody battles.
Emergency restraining orders - known legally as 209A orders - are being sought in cases where there is no abuse as a way to punish the other party or gain a tactical advantage in legal wrangling, say some attorneys.
Although statistics are not available on the issue, attorneys say anecdotal evidence suggests the phenomenon largely developed after the law was changed in 1992 allowing judges to issue restraining orders when the perpetrators and victims do not live together.
Richard Kelleher, a Wareham District Court judge since 1978, said with little training to base his decisions - and the media seizing on cases where an order wasn't issued - he sometimes feel obliged to issue an order.
He said when a person stands before him requesting a restraining order he never considers if the order is warranted.
"I never discourage anyone from seeking a 209A and I never look to see if there are prior 209As issued. There is a tremendous range that someone will abuse the process but we all have the right to use the process," he said. "We are supposed to be in the middle of the process trying to make sense of it and it is very difficult."
New Bedford District Court Judge David Turcotte said, based on his experience in courthouses in the region, the number of baseless cases is few.
"Cynics would say there is abuse in the system but I think the percentage is so small it's not even worth considering," Judge Turcotte said.
"In six months I can count on one hand the cases I raised my eyebrows on."
Judge Turcotte said suspicions would be raised if there is also a probate case pending - such as a divorce or custody issue - when a restraining order request is made.
But examples of restraining order abuses have become legendary in the legal community.
Elaine Epstein, former president of the Massachusetts Bar Association, recalls one incident when a woman obtained a restraining order against a landlord trying to evict her.
"It was an unbelievable case. She didn't want to be evicted and knew that if she got a restraining order she could stay in the house," she said.
Although the case was dismissed, it is symptomatic of a court system under pressure to deal with a scourge that it can not always handle.
Ms. Epstein said the courts have become a rubber stamp for restraining orders, perhaps even intensifying the problem by taking on a role of a social service agency when it does not have the resources or mandate to do so.
In a summer 1993 article she wrote for the bar association newsletter, she noted that the media frenzy over domestic violence has paralyzed those in contact with the court system. In short, she says, police, prosecutors and judges use the law to shield themselves from any potential criticism, citing what has now become a mantra in the court system: Better safe than accurate.
"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," she said.
Gun shy judges now work under the "presumption to grant the order," said defense attorney Kenneth Shine, who works mainly in Plymouth County.
Mr. Shine recently represented a police officer who was hounded by an ex-girlfriend. Reluctantly, the officer obtained a restraining order against her to keep her from bothering him at work. Days later and without any history of abuse by the officer, she obtained a restraining order against him, Mr. Shine said.
"Claiming that she was afraid, she got the order. Eight police officers show up at his door and seize all his weapons," Mr. Shine said. "He coughs them up but then the police go to his parent's house and search there for weapons. He does not even live there."
Like the landlord case, it was later dismissed but the officer was still put on administrative leave for two weeks.
"She knew exactly what to do. The left hand didn't know what the right hand was doing and she won," he said.
Mr. Shine said restraining order abuse is something he sees just about every day in his practice - and believes it will continue until judges take a more critical view of the cases.
"I'm the great liberal, but the pendulum has to swing this way so it can get back to center," he said. "Because you are dealing with such emotional issues it quickly becomes impossibly complicated. I sometimes wonder if we create more issues and problems by allowing so many 209As. So often simple arguments escalate into court hearings where there are usually much better alternatives."
The raw numbers of emergency judicial restraining orders issued in Massachusetts have rocketed upwards nearly 50-fold in the past decade. In 1985, only 324 "judicial response" orders - those issued by a judge when the courts are closed - were issued. In 1994, 14,878 orders were issued.
The greatest increase in emergency judicial response 209A orders occurred between 1991 and 1992 when the issue of domestic violence began to enter the public's consciousness and the state law regarding restraining orders changed. In 1991, 6,048 emergency orders were issued; it jumped to 10,438 the next year and 14,705 in 1993. Last year 14,878 emergency judicial restraining orders were issued.
Mr. Shine said the restraining order process too often is used as a tool to go after someone - rather than for its intended purpose as protection.
Leonard Bello, a Wareham attorney with a large divorce practice said some people use what he called the "wicked double-edged sword" whether it is needed or not in divorce cases.
In those types of cases, allegations of abuse can cloud matters, Ms. Epstein said. As a result, the person who sought the order gains a tactical advantage, often in child custody cases.
Mr. Bello cited one divorce case where a woman sought a restraining order nine months after an alleged incident with her husband.
"She wants the house. There is no abuse, they just don't get along. The problem then is to get him out of the house he must do something bad," he said. "There needs to be more meaning to getting a restraining order."
Even more troubling to Mr. Shine are the cases where parents seek restraining orders against their children.
"The parent feels the need of an order to control a child," he said. "It is used as a weapon and once issued it stays on the child's record forever - even if it gets dismissed as it tends to happen. And then this girl, without any prior record, goes to apply for a job some day and this pops up."
Even judges acknowledge that the ease of obtaining a restraining order opens up the process to abuse.
Judge Kelleher said it is heartbreaking when someone asks to vacate an order after being abused, a common occurrence in the district courts.
"I don't know what to do in these cases," he said. "Hopefully, the district attorney can prove the case without her. I then try to make myself satisfied that the person is making an intelligent, informed decision. But oftentimes that person is back again in two weeks."
http://www.federalobserver.com/archive.php?aid=3674
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
By Preston P. Forman - Standard-Times
One of society's chief weapons in the battle to halt domestic violence has become a weapon of a different sort in the hands of people involved in divorce and custody battles.
Emergency restraining orders - known legally as 209A orders - are being sought in cases where there is no abuse as a way to punish the other party or gain a tactical advantage in legal wrangling, say some attorneys.
Although statistics are not available on the issue, attorneys say anecdotal evidence suggests the phenomenon largely developed after the law was changed in 1992 allowing judges to issue restraining orders when the perpetrators and victims do not live together.
Richard Kelleher, a Wareham District Court judge since 1978, said with little training to base his decisions - and the media seizing on cases where an order wasn't issued - he sometimes feel obliged to issue an order.
He said when a person stands before him requesting a restraining order he never considers if the order is warranted.
"I never discourage anyone from seeking a 209A and I never look to see if there are prior 209As issued. There is a tremendous range that someone will abuse the process but we all have the right to use the process," he said. "We are supposed to be in the middle of the process trying to make sense of it and it is very difficult."
New Bedford District Court Judge David Turcotte said, based on his experience in courthouses in the region, the number of baseless cases is few.
"Cynics would say there is abuse in the system but I think the percentage is so small it's not even worth considering," Judge Turcotte said.
"In six months I can count on one hand the cases I raised my eyebrows on."
Judge Turcotte said suspicions would be raised if there is also a probate case pending - such as a divorce or custody issue - when a restraining order request is made.
But examples of restraining order abuses have become legendary in the legal community.
Elaine Epstein, former president of the Massachusetts Bar Association, recalls one incident when a woman obtained a restraining order against a landlord trying to evict her.
"It was an unbelievable case. She didn't want to be evicted and knew that if she got a restraining order she could stay in the house," she said.
Although the case was dismissed, it is symptomatic of a court system under pressure to deal with a scourge that it can not always handle.
Ms. Epstein said the courts have become a rubber stamp for restraining orders, perhaps even intensifying the problem by taking on a role of a social service agency when it does not have the resources or mandate to do so.
In a summer 1993 article she wrote for the bar association newsletter, she noted that the media frenzy over domestic violence has paralyzed those in contact with the court system. In short, she says, police, prosecutors and judges use the law to shield themselves from any potential criticism, citing what has now become a mantra in the court system: Better safe than accurate.
"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," she said.
Gun shy judges now work under the "presumption to grant the order," said defense attorney Kenneth Shine, who works mainly in Plymouth County.
Mr. Shine recently represented a police officer who was hounded by an ex-girlfriend. Reluctantly, the officer obtained a restraining order against her to keep her from bothering him at work. Days later and without any history of abuse by the officer, she obtained a restraining order against him, Mr. Shine said.
"Claiming that she was afraid, she got the order. Eight police officers show up at his door and seize all his weapons," Mr. Shine said. "He coughs them up but then the police go to his parent's house and search there for weapons. He does not even live there."
Like the landlord case, it was later dismissed but the officer was still put on administrative leave for two weeks.
"She knew exactly what to do. The left hand didn't know what the right hand was doing and she won," he said.
Mr. Shine said restraining order abuse is something he sees just about every day in his practice - and believes it will continue until judges take a more critical view of the cases.
"I'm the great liberal, but the pendulum has to swing this way so it can get back to center," he said. "Because you are dealing with such emotional issues it quickly becomes impossibly complicated. I sometimes wonder if we create more issues and problems by allowing so many 209As. So often simple arguments escalate into court hearings where there are usually much better alternatives."
The raw numbers of emergency judicial restraining orders issued in Massachusetts have rocketed upwards nearly 50-fold in the past decade. In 1985, only 324 "judicial response" orders - those issued by a judge when the courts are closed - were issued. In 1994, 14,878 orders were issued.
The greatest increase in emergency judicial response 209A orders occurred between 1991 and 1992 when the issue of domestic violence began to enter the public's consciousness and the state law regarding restraining orders changed. In 1991, 6,048 emergency orders were issued; it jumped to 10,438 the next year and 14,705 in 1993. Last year 14,878 emergency judicial restraining orders were issued.
Mr. Shine said the restraining order process too often is used as a tool to go after someone - rather than for its intended purpose as protection.
Leonard Bello, a Wareham attorney with a large divorce practice said some people use what he called the "wicked double-edged sword" whether it is needed or not in divorce cases.
In those types of cases, allegations of abuse can cloud matters, Ms. Epstein said. As a result, the person who sought the order gains a tactical advantage, often in child custody cases.
Mr. Bello cited one divorce case where a woman sought a restraining order nine months after an alleged incident with her husband.
"She wants the house. There is no abuse, they just don't get along. The problem then is to get him out of the house he must do something bad," he said. "There needs to be more meaning to getting a restraining order."
Even more troubling to Mr. Shine are the cases where parents seek restraining orders against their children.
"The parent feels the need of an order to control a child," he said. "It is used as a weapon and once issued it stays on the child's record forever - even if it gets dismissed as it tends to happen. And then this girl, without any prior record, goes to apply for a job some day and this pops up."
Even judges acknowledge that the ease of obtaining a restraining order opens up the process to abuse.
Judge Kelleher said it is heartbreaking when someone asks to vacate an order after being abused, a common occurrence in the district courts.
"I don't know what to do in these cases," he said. "Hopefully, the district attorney can prove the case without her. I then try to make myself satisfied that the person is making an intelligent, informed decision. But oftentimes that person is back again in two weeks."
http://www.federalobserver.com/archive.php?aid=3674
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878