Laws, Police and Courts

Temporary Restraining Orders

    A Victim of domestic violence may call the police 24 hours a day to file a protective order.  The police contact the assigned  "on call" judge after court hours. The victim needs to inform the police that she wants to file immediately. Some police departments have a special domestic violence detective in the station.

    Once the judge is contacted s/he can issue an order by phone and tell the police officer to give you the order and make sure that the local police in the batterer’s neighborhood also receive a copy of the order.  It is good until court hours resume and you can appear before the judge in person.     

    This   Abuse Prevention Act requires the court  to provide a number of protective measures . that you can request (without the help of a lawyer). Some women seek protection from the court as a first step to stop the abuse. Others prefer  to find  safe shelter outside of the home before  they seek help ties interpret for each other at any Hearing.

    “You should refer to the judge as ‘Your Honor.’ Wait until it is your turn to speak.  Do not interrupt the other party or the judge. The person who files the motion usually speaks first. At the end of the hearing, the Judge may tell you what he or she has ordered. If the judge takes it under advisement, this means that the Judge is taking more time to think about the case. After the judge decides the case the court will send you a copy.”¹

    In the past, several judges have been held accountable when protective orders were not issued, judges are more likely to issue them on behalf of battered women.

    If a judge will not issue a protective order, he/she should be reported to the Massachusetts Coalition of Battered Women's Service Groups (Telephone Number 617-248-0922)

1. General information if you represent yourself read This Boston bar Association p.9

What is the law?

    Judges may grant you a number of protective orders, at the end of the initial Hearing.             

    Get the  Chapter 209 (A) Abuse Prevention Act form in the Clerk’s office in the Court. You may also get a number of other “complaints” forms at the Clerks office too.

    The 209-(A) form has specific check the Boxes.   You may want to check a number of those boxes on this Order

    Temporary Restraining Orders, prohibiting any further physical attack.   You can have it specified that the person stays away for 1,000 yards or more.

    Temporary orders to vacate, forcing the abuser to leave the residence for up to a year, regardless of who owns the residence or whose name is on the lease.

    Temporary support or custody orders, requiring the abuser to provide you with monetary support and assigning you custody of the children.

    Monetary compensation for medical and legal fees, lost wages, shelter expenses, etc.

     Special orders prohibiting other problems, such as harassment of you at work, can also be granted.   If you reside in public housing, you may want to ask the judge to insert onto the court order that the abuser is to not interfere with the victim’s right to obtain housing where the victim may be eligible.

Violation of any of these

Items that you checked is grounds for arrest and what was only a civil crime changes to become criminal charges.

    Abuse Prevention Act will also require that all firearms and licenses be surrendered to the police.

    You may file for protection at any district, probate or superior court in the state at any time with or without an attorney.

    There is no filing fee, and, the court Clerk is also required to assist you with filling out the forms and contacting The judge on-call if the Court is not in session.

    *The abuser’s life time with this victim.

    Now, he knows the court date when and where you will be!   He may be waiting outside the courthouse before or after your reappearance before the judge.

    If this batterer is extremely dangerous, go to the police station first to obtain a police escort to the court. Make sure you inform the Victim Witness Advocate, the court, and everyone else involved if the batterer has any pre-existing warrant or if the batterer is on probation or parole.   They could arrest the batterer in the courtroom. If you are afraid to leave the court after the judge extends the order for up to one year, ask the judge to hold the batterer in the courtroom fifteen minutes so You can have enough time to get away Unharmed.

Can someone else go to court instead of you?

    If your batterer is very dangerous and you are afraid to go to court, your Victim Witness Advocate or Legal Advocate can go to court instead of you.  You need to type the reasons why you are afraid to go to court and why it would be dangerous for you.  This is called an affidavit.

    Try to get a second affidavit saying, " it would be dangerous" from a social service provider.  You need to get the affidavits notarized.  .

    The affidavits need to be given to the Clerk o courts before your hearing date.  The judge will then decide that your advocate can go to court instead of you.

PROTECTIVE SERVICES AND PEOPLE WITH DISABILITIES

    CALL 1-800-426-9009 voice/TDD TO ASK FOR HELP OR TO REPORT ABUSE ON BEHALF OF A PERSON WHO HAS A DISABILITY

    In addition to the 209 (a) Abuse Prevention Act there is another law that may be used that specifically protects people who have disabilities.

    Chapter 19(c) of the Massachusetts General Laws created the Disabled Person’s Protection Commission to help adults with disabilities, which as a result of their disability are either wholly or partially Dependent upon others to meet daily needs, and who are abused by the people responsible for helping them. 

    An important word about the 209A. The Domestic Violence Abuse Prevention Act is a strong law. Victims with disabilities are covered.   Everyone in the domestic violence response and protection system MUST offer his or her assistance in compliance with the Americans with Disabilities Act:

    Services must be accessible and reasonable accommodations made for those who have a disability.   Let them know if you have special needs due to a disability and educate them if you need to!”^1.

^{“To Victims of Domestic Violence and People who care about them” a form created by the Disabled Person’s Protection Commission  @ 99 Bedford St. Boston, MA 02111 An}

    Investigator will talk with the person reporting the abuse.   Of course, if you are the person who is abused you are welcome to report your own abuse.

    After business hours, beeper operates the hotline, and an investigator will call back within a short time.

    DPPC offers 24-hour service.   They will take the information and refer it to the appropriate agency where the investigation will begin. They deal with abuse that occurs in both institutions and at home. The Disabled Person’s Protection Commission refers complaints of abuse to the Massachusetts Rehabilitation Commission or the Department of Health and Retardation depending upon the disability.

    The service provider and woman who has a disability are likely to determine that her safety can be assured only if she leaves the premises. If the person who has the disability does not agree with the findings the case is closed.    According to M.G.L. Chapter 19c, abuse means, "an act or omission which results in serious physical or emotional injury to a disabled person.   "Most people who work in a professional capacity with people with disabilities, such as medical personnel, teachers, social workers, police, etc. are mandated to report any serious concerns of abuse such as physical or emotional injury resulting from abuse, including sexual activity without permission.

    Failure to report can result in being fined, or being subjected to a lawsuit. Anyone can report suspected abuse of a disabled person including the abused. The law contains pro­visions to protect these reporters from retaliation or punishment if they make a report. The D.P.P.C. provides for the investiga­tion of the suspected abuse and designates other agencies to furnish protective services. This commission is set up to protect the person who has a dis­ability; it does not prosecute the abuser.

Mutual Orders

    Batterer's are becoming more sophisticated.    Furthermore, if the victim tries to defend herself, the batterer could say,  “You struck me!”    Using the court as a means of further battering the victim has increased in likelihood especially when it is used to obtaining a mutual restraining order.    The burden of proof is one word over the other, and when there are no witnesses sometimes the judges will take the easy way out by issuing mutual orders.   Although mutual orders are strongly discouraged, it is also done frequently when the perpetrator of the domestic violence is one of the same sex partners. However, “a judge who cannot distinguish the abused party is abdicating her or his responsibility as a neutral fact finder.   You should let the court know how much you object to this mutual order and ask the judge to put the findings in writing.

Mediation

    Never go into mediation with anyone who is abusive. Anyone who advises you to do this is not knowledgeable about what kind of power and control abusers obtain through interacting with the victims. Reasonable and equitable solutions can not be reached with a violent person.

Excited Utterances

    In October 1997 a District court judge           has ruled that statements the wife of former Red Sox outfielder made to police describing how her husband allegedly struck           her can be used as           evidence against him, even though she has declined to testify.”¹

^{1. The Boston Globe October 11, 1997 p. A18}

Civil Recovery & Crime Victims         

    A civil case focuses on the damage done to the victim and on compensation for pain and suffering Civil Recovery procedures require that most of the evidence prove your point and is much easier than the criminal charges where  “beyond a reasonable doubt" is needed.

IMMIGRATION, DISABILITIES AND BATTERING

    We have seen women from other countries that marry Americans and then become battered women and feel stuck with the batterer or they will lose their citizenship.

    If the battered women try to escape, they could lose their citizenship when they leave their spouse (even if they have children).   If they are trying to get a “green card” they can be prevented from obtaining it.

    However,  battered women can "self-petition" under the Violence Against Women Act (VAWA) as long as the  victim is still married to the perpetrator.

    Batterer's sometimes say, “If you leave me, I will tell immigration that you married me for the sole purpose of gaining citizenship. “  Sometimes that  works. Sometimes it doesn't work.   Massachusetts Law Reform and Greater Boston Legal Services have been able to assist these women  with self petitions.  “Battered Women shelters do not require proof of immigration status. This is a basic service for the good of the people. Undocumented citizens can also receive emergency medical services.”¹

    However, if a person is an undocumented disabled citizen and wants to apply for financial benefits from Supplemental Security Income (SSI) or (for people who have been employed.)  SSDI, they need to be careful.   More than likely, they will be reported to the Immigration and Naturalization Service.   Legal immigrants do not lose their status with the Department of Transitional Assistance benefits under the 1997 amended Federal Welfare Reform Law. If you are: a non-U.S. citizen and have worked over 10 years; or you are a veteran; or you were granted withholding and you were in the United States for five years you will not lose your benefits.

^{1. 1997 Massachusetts Law Reform Institute, 99 Chauncy Street, Boston, MA 02111}

Child Custody and Visitation

    Evidence of domestic violence needs to be considered when making decisions on custody and visitation. Children are always silent victims of domestic violence having at the very  “least,” been the witness of domestic violence.    It is not in the best interest of the child if placed in the home of a violent parent.   Therefore, if the judge decides to place the child in the home of the abuser, or where either party appeals the decision, the judge needs to make  “written findings”

Visitation

    Again, children are always at the least, witnesses to domestic violence when a mom is being battered. Therefore, the judge must consider these factors and make decisions that will be in the best interest of the children when deciding whether to allow visitation with a batterer.   Now, if the judge decides to allow visitation with a batterer, the judge has to issue findings of fact supporting his/her decision. Therefore, there is likelihood judges will give greater weight to domestic violence when determining whether or not to allow a batterer visitation privileges. Perhaps the judge will have the batterer visit in a “visitation center.” or be supervised in a Department of Social Services Office or in the police Station.         

Sometimes Battered Mothers are on Trial

    If mothers do not leave the batterer right away,

    A 51 (A) may be filed on behalf of the children by mandated reporters or other people. Moms have to be very careful that they make sure their children are not being neglected while moms are trying to sort out what their first steps are to escape. Also, when a mom  leaves, a batterer may be the first person to call in a complaint of neglect or abuse.

    In fact this may be one of the threats the batterer uses to keep mom from leaving. This can happen to leading  mothers.    many individuals in agencies  are  aware that  batterers sometimes use social services  as well as the courts to  further inflict harm on the battered woman. 

    These agencies  become tools for the batterer when a service provider who is not as sensitive to the needs of a battered woman or their children and a Care and Protection Petition is  filed when the abuser claims abuse.

    If a child needs to go to foster care, be careful  not to leave the child more than 12 months in foster care.  Due to the Adoption and Safe Families Act  your approval  or signature  will not be required in when providers consider adoption for your child.

    (See the Resource section under free legal help)  You may want to  obtain an attorney immediately to represent you if someone files a 51(a) and especially if your child is placed in foster care.

    “Many women who have become involved with Care and Protection Petitions have been abused by their husbands or boyfriends.   One of the most painful things that can happen to a mother and to the children is to have her children removed from her care without her consent and then placed in foster care. Usually foster care parents are concerned individuals but sometimes a bad apple gets in to the system. Every mother would like to feel that her children would be well taken care of. It is very frightening not to know where your children are or who they are with.^{2.  “Mothers on Trial” How to Cope With a Care and Protection Petition by being Mothers the Care and Protection Mothers Group in Boston Juvenile Court}