Legal Issues Faced By Victims of Domestic Violence

Domestic violence is not only a devastating personal experience, it also may result in a victim’s involvement in a variety of legal proceedings. The victim may seek safety through the courts through abuse prevention orders or she may become a witness in a criminal case. She may seek divorce, custody or support in family court or risk losing custody in juvenile court because of Department of Children and Families involvement. She may also have issues with housing, benefits and immigration.

Frequently asked questions

Restraining Orders: Basics

Restraining orders are often the first legal procedure in which a victim of domestic violence becomes involved. In Massachusetts, domestic violence restraining orders are governed by the Massachusetts General Laws chapter 209A Abuse Prevention Act. This law is designed to protect the person who files for it (the Plaintiff) from a certain kind of abuser (the Defendant). Under this law, the Plaintiff and Defendant must be married or formerly married to each other, or live together or have lived together, or are related by blood or marriage, or have a child together, or are or were in a substantial dating relationship. When a victim files this complaint she states that the abuser has physically hurt or tried to hurt her, or has placed her in fear of being hurt or has forced her into involuntary sexual acts. An abused person has a choice of courts to go to to file this complaint. She may go to the District Court or Boston Municipal Court division that covers the area where she lives or the Probate and Family Court of the county where she lives. She may also file in one of these courts that are in the area to which she fled to escape abuse. Any day and time that the courts are open a victim of abuse (Plaintiff) may walk into a court house and file a Complaint for Protection from Abuse. The clerk’s office provides a Complaint form and a form asking for information about the Plaintiff’s children, if there are any. There is also a form for confidential information such as the Plaintiff’s address which she may request be kept off the Complaint. There is also a form for detailed information about the abuser (Defendant) including his physical description, where he lives and works and what kind of car he drives. The Complaint form also asks for the birth date and parents’ names of the Defendant so that a criminal record check may be conducted on him. Many courts also ask for the birth date and Social Security number of the Plaintiff and conduct a criminal record check on her as well. This is supposed to help prevent abusers from seeking orders against victims before the victim has the opportunity to file, but it is something for the victim to keep in mind in cases where she may have warrants outstanding. The Complaint form provides several check off boxes that indicate what protection the victim is seeking. She can ask that the Defendant be ordered to stop abusing her, to leave and stay away from her residence and work place, to stay away from her a certain number of feet and not to contact her in any way including through third parties. There are also sections whereby she can ask that the Defendant return property or keys to her or be ordered not to interfere with the home’s utilities. She may ask that her children be included in the protections, she may ask for custody of her children and that the Defendant be ordered to pay child or spousal support. The most important part of the Complaint form is the Plaintiff’s Affidavit. This is a page where the Plaintiff writes out, in her own words, a sworn statement of what the abuser did to her and why she is looking for the court’s protection. It should be as inclusive and detailed as possible so that the judge has the whole story of what happened. It is important for the victim to tell the court if she has been injured or hospitalized or the police have been involved. Dates and times are helpful but if the victim doesn’t remember them exactly she should do an approximate time line. Some courts have advocates that help the Plaintiff fill out the forms. Some of these advocates are from local domestic violence programs, Massachusetts’s Safeplan Program or the District’s Attorney’s office. After the paperwork is filed at the clerk’s office, the Plaintiff goes into a courtroom to appear before a judge. Some judges have the Plaintiff stand in front of the courtroom where everyone who addresses the court stands. Others will hear these cases up close to the judge at “sidebar” so that it is more private. The judge looks at the forms and reads the Affidavit. Some judges might ask a question or two for clarification or might ask the Plaintiff to explain something in the Affidavit. If everything is filled out correctly and the Affidavit is clear the judge will usually enter a Temporary Order that is good for ten days. A date is set for when the ten days has passed for the Plaintiff to return to court for a hearing to have the Order extended. During the ten day period the Defendant is “served” with the Order, meaning the local police find him and give him a copy of the Order along with notice of the hearing in ten days. The Defendant has the right to come to the court on that day and tell the judge if he objects to the Order. At the hearing it is helpful for the Plaintiff to have police reports, medical reports or witnesses if available. However, if these are not available the judge listens to testimony of both people and makes a decision on who seems to be the more truthful. Safety planning is important on this hearing date. Court officers in the halls and courtrooms can help victims feel safer by being made aware of the situation. If a victim feels unsafe in court, she or her advocate should tell the court officers present about the situation. They make sure that there is no contact attempted by the Defendant and physically stand between the parties during the hearing. Sometimes a victim may sit in an advocate’s office out of sight of the Defendant until the case is called. If the judge extends the Order the next hearing date may be up to one year away. At that hearing date the Plaintiff comes to court again if she wants the Order extended and the Defendant can also appear and object again. The Plaintiff should report if the Defendant has violated the Order during the year; however if he has not violated it, that fact alone does not mean the Order should not be extended. If the Plaintiff is still in fear of the Defendant the judge should extend the Order and at this point may make the Order permanent. When the hearing is over, safety planning should continue. The Defendant may be kept in the court room for several minutes allowing the Plaintiff to leave without feeling she may be followed. The police provide the court with proof that the Defendant has been served. If he has been served but does not come to court for the hearing the judge will often extend the Order based on the original application for one year after the first ten days and after that may make it permanent. The Defendant has not committed any crime based only on the fact that he has a Restraining Order against him. However if he violates any part of the Order he is committing a crime. A Plaintiff should always keep a copy of the Order on her person to show police in an emergency and dial 911 if necessary to report a violation. If a victim of abuse needs protection on a day or time of day that courts are not open she may apply for an Emergency Order at a local police station. There are judges on call on weekends, nights and holidays that issue Emergency Orders at police stations by telephone. These orders are served upon the Defendant by the police and a hearing is set for the next day that the court is open.

Restraining Orders: Some Special Circumstances

The Violence Against Women Act is a federal law that provides that the Abuse Protection Orders of every state be honored by every other state. If a victim moves to Massachusetts and has an Order from another state she should file a certified copy of that Order with an Affidavit at the court covering the area where she lives. Likewise, if a victim obtains an Order in Massachusetts and subsequently moves she should bring a certified copy of her Order with her and contact a local domestic violence agency in her new state to find out the procedure for making sure her Order will be honored there. Some potential barriers arise when some victims seek to file for abuse protection. One such barrier is language access. The Massachusetts Office of Court Interpreters is the office that supplies interpreters for court proceedings. When a Plaintiff goes to court for a Restraining Order she has the right to ask for an interpreter and the clerk’s office must make the request for her. Unfortunately, there are usually not enough interpreters available on an immediate basis and a Plaintiff may have to wait for their arrival but it is important for her to remember that it is her right to have the interpreter there. Plaintiffs who have disabilities also should know that they have the same rights as those without disabilities and the courts have to accommodate them when they seek Abuse Protection Orders. Sometimes an abuser will go to court and claim to be abused and ask for an order of protection before the real victim has an opportunity to do so. This situation can make it difficult for judges to decide who the real abuser is and sometimes they will issue Orders against both people or “Mutual Orders”. This is not something that judges are supposed to do without very good reason and they are required to put these reasons in writing called “findings”.

Restraining Orders: Choices

As noted above, victims of domestic violence face some choices when they are thinking about obtaining Restraining Orders. One choice is which court to go to when filing for the Order. Victims should consider what the differences are between filing in District Court or Probate and Family Court. District Courts may be more convenient geographically because there are more of them. District Court judges are allowed to order that the children of the Plaintiff receive the same protections from abuse as the Plaintiff and they may also award custody to the Plaintiff. District Court judges are not allowed to order visits with the children to the Defendant. It is not unusual for a Defendant to appear in District Court for a 209A hearing and tell the judge he is not objecting to the Order but wants to see his children. It is not appropriate for the judge to make that happen against the Plaintiff’s will. It is also not appropriate for court personnel to tell victims that they need to go to the Probate and Family Court if there are children involved in the case. The Plaintiff may decide to do that if she feels that visits are appropriate and can be conducted safely. Another choice a Plaintiff may make is whether to file for the Order where she lives or where she has gone to escape the abuse. It is important for the Plaintiff to remember for her safety that the abuser will have an idea of where she may be staying based on where she files. When considering filing for an Abuse Prevention Order, the most important decision is whether or not to file for one at all. A victim needs to take many factors into consideration. She is the one who knows the dynamics of her situation and relationship better than anyone else. She needs to consider whether the abuser will respect the Order or, because he feels his power and control is being challenged, whether he will act without regard to consequences. The victim also knows how the abuser will behave in court and whether or not she wants to face him in that forum. Victims should never be told that they need to file a Restraining Order against their will for any reason. It is not appropriate for the Department of Children and Families to tell a victim she needs to file for an Order when she knows it would not be safe for her to do so. Also, housing authorities must not insist that a potential tenant have a Restraining Order to prove she needs a domestic violence priority. The intent of the 209A law is to prevent abuse and keep the filer safe. If the victim reasonably feels that she will be safer with an Order in place than without one she should seek the court’s protection. The Massachusetts Restraining Order statute was intended to make it less difficult for a victim to obtain the help she needs on her own; there is no filing fee and an attorney is not needed but it can be helpful to have someone to talk to during this decision making process. Advocates and attorneys, including those of the Finex House Legal Advocacy Program are available to offer guidance and answer questions, but the final decision is always up to the victim herself. Another reason a victim might consider seeking out legal help is that Defendants in these proceeding have become more sophisticated about the law and it is not unusual for them to have attorneys of their own at these hearings.

Restraining Orders: Non Intimate Partners

Effective May 12, 2010, Massachusetts General Law chapter 258E offers another kind of protection for victims in Massachusetts. This law expands the category of people against whom Restraining Orders may be sought. Victims of sexual assault, stalking and harassment may obtain Orders against non intimate partners such as coworkers, classmates and neighbors. Violators of this law may also be held criminally liable.

The Criminal Process

Sometimes a criminal case regarding the Plaintiff and Defendant is proceeding while a 209A Order is in effect. This happens when the Defendant is arrested for the abuse or has been summonsed for an Arraignment or a Criminal Complaint has been issued against him by a magistrate. This is when the Plaintiff is no longer the Plaintiff in a civil suit but a Victim Witness in a criminal case. At this point the Commonwealth of Massachusetts is proceeding against the Defendant and the District Attorney’s office handles the case. The lawyer on the case is called the Prosecutor or Assistant District Attorney (ADA) and the Defendant also has a lawyer he has either hired or has appointed by the court. It is helpful for the victim to understand the process.

If police are called to a domestic dispute and violence is alleged, the police are required to arrest the person accused who becomes the Defendant. The Defendant will then be arraigned and a date set for pretrial. It is at this point that the court decides whether or not the Defendant is held in custody or let free depending on if he is considered dangerous or might run away before the next court date. By the next court date, the pretrial, the DA usually likes to be in touch with the victim about what she says happened and what she would like to see happen to the Defendant. Sometimes the DA will have enough evidence to proceed without the testimony of the victim but sometimes her testimony is the only evidence in the case. When that happens the victim may be subpoenaed to testify. If she is afraid or doesn’t want to for any reason, the DA can choose to charge her with contempt but often will not because of sensitivity about her fears. Defendants will often plead guilty before trial.
District Attorney’s offices have Victim Witness Advocates who help victims understand this process and offer their support. It is important for the victim to remember that the District Attorney and their staff, including the Victim Witness Advocate are not representing the victim and do not have attorney client privilege with the victim. Information they receive from the victim may have to be shared with the Defendant’s attorney. For this reason it is often good for a victim to have a civil attorney or domestic violence advocate working with her. A victim does not have to file a Criminal Complaint or be involved with a criminal case to file for or obtain a Restraining Order. Likewise, if a Criminal Complaint is filed or criminal charges are brought against a Defendant she does not have to file for a restraining order.

Domestic Violence and Family Law

If a victim and abuser are married to each other or have children together proceedings may occur in the Probate and Family Court. A victim has the right to file for divorce, custody and child and spousal support there. If a victim cannot afford the filing fees that are charged for some of the actions, she may file an Affidavit of Indigency to have these fees waived. Often victims are worried that their children are not safe while visiting with the abuser because of the history of violence or threats not to return the children. They have the right to ask for supervised visits if they can show the Court that they are necessary. If there is no third person available to supervise the visits there are Supervised Visitation Centers available around the state for this purpose. These centers charge fees and the parent who needs supervision should pay for the visits. If there is a Restraining Order in place from a District Court, the Probate and Family Court is allowed to vacate or modify it to allow for visits. The Massachusetts Department of Revenue Child Support Enforcement Unit will usually be involved in cases where child support is an issue. This agency conducts paternity testing if necessary, has a locator service to find parents who owe money and use wage assignment to take the money directly from the parent’s pay check to send to the other parent. Spousal Support or Alimony is also sometimes available to victims of domestic violence in the Probate and Family Court. The judge considers many things in deciding whether to order this type of support including the length of the marriage and the ability of the victim to earn money after the separation. When a victim of domestic violence goes to the Probate and Family Court for these proceedings she should take the same kinds of safety measures as when obtaining a Restraining Order. Before going before a Probate and Family Court Judge for these proceedings the Plaintiff and Defendant are usually sent to the Probation Office where they identify what the problems are and what each of them wants. A victim should make sure the Probation office knows if she has a restraining order so that she is not made to sit in the room with her abuser if she is not comfortable doing that.

Domestic Violence and the Department of Children and Families

Families usually get involved with the Department of Children and Families (DCF) when a report alleging abuse or neglect of a child is filed under Massachusetts General Law chapter 119 section 51A. These are generally referred to as “51A’s”. There are many people including doctors, teachers and other child care providers who are required to file these reports if they suspect a child is being abused or neglected. If the report is considered credible the DCF will investigate. If a child is in a home where domestic violence is happening, DCF will consider this neglect and open a case regarding the family. A parent has the right to request a hearing if she disagrees with the decision that the child is being abused or neglected but it takes so long for these kinds of hearings to be scheduled that this right does not have a lot of meaning. Once the case is opened, the situation will be assessed, a worker will be assigned and a “Service Plan” will be developed for the family. If DCF feels that the parent s are putting the child in danger they may remove the child from the home on an emergency basis. DCF then has to go into the Juvenile Court within 72 hours and file a “Care and Protection” petition to obtain legal custody of the child. Each parent is entitled to an attorney for this proceeding and the child is also appointed an attorney. This process is often started because a victim of abuse has not felt able to take her children and leave the abuser, either because she is afraid, economically dependant or any combination of complicated reasons. The issue often becomes one of the victim’s ability to separate herself from the abuser either by going into shelter, obtaining a restraining order or taking other measures to keep herself and her children safe. Sometimes a relative may be approved as the foster parent or sometimes DCF will be satisfied that the child is safe and will give physical custody back even if they keep legal custody, meaning they are still in charge of the important decisions in the child’s life. When a child is in foster care a Foster Care review is conducted every six months at which time the goal for the child’s future may be updated. If a child remains in foster care for one year a permanency plan under the Adoption and Safe Families Act must be developed for the child. It is important for a victim to work with her attorney to protect her rights, keep contact with her child if possible, and show the court she is capable of keeping her child safe so that the goal will remain reunification with the parent and does not become adoption. A goal of adoption means that the DCF may take the case to trial for termination of parental rights. Sometimes a parent avoids this by agreeing to an open adoption whereby they maintain some visitation privileges with the child.

Domestic Violence and Housing

An important issue for many victims of domestic violence is housing. In order to stay safe a victim may have to relocate because she may have been living in property controlled by the abuser or his family or she may have to move somewhere where the abuser cannot find her. Housing is a very difficult issue because it is so scarce and expensive. Public housing authorities and low income programs usually have long waiting lists. However, victims of domestic violence should always apply for priority status available through many local housing authorities. She will receive priority status if she shows that she was displaced due to domestic violence. If she is denied this priority or denied housing for any reason she should appeal, a process that usually involves an informal conference. Housing and legal advocates at many domestic violence programs, including Finex House are available to help with this process.

Domestic Violence and Immigration

Victims of domestic violence who are immigrants face some unique situations. Sometimes an immigrant victim is married to a US citizen (USC) or Lawful Permanent Resident (LPR) who is able to sponsor her for family based legal permanent residency, but abuses her, refuses to sponsor her and holds her lack of immigration status over her as a way of controlling her. The Violence Against Women Act allows for abused immigrants to petition for their own lawful residency rather than relying on their abusive spouse to do it. The victim must show that she is or was in a good faith marriage, has been abused and is a person of good moral character. Another remedy for some immigrant victims is an application for U status. An immigrant who has been a victim of certain violent crimes and cooperates with certain government agencies regarding those crimes may apply for this status. The government agency must certify that the victim has cooperated and the victim must supply a statement on how the crime has affected them. Agencies that may supply the certification include police departments, District Attorneys offices and the Department of Children and Families. The U status is in effect for three years after which time the immigrant may apply for Lawful Permanent Residency. Political Asylum is another possible remedy for immigrants who have fled from a country where they have been victims of domestic violence. At one time domestic violence was not considered a reason to obtain political asylum but it is now starting to be considered.

Domestic Violence and Public Benefits

Transitional Aid to Families with Dependant Children (TAFDC) is a welfare program which provides cash benefits to families with little or no other source of income. When victims of domestic violence need to start over with their lives they often need assistance from this program. Everyone has the right to apply for these benefits at the local office of the Department of Transitional Assistance (DTA). If staff at the office believes that someone is not going to qualify for them they are still not allowed to deny her the right to apply. If she qualifies she will receive benefits dating back to the date of application. There are domestic violence specialists assigned to DTA offices and victims can ask for their help if they have problems with their benefits. There are time limits on how long a family may receive this help and certain activities must be conducted, but if a victim can show that domestic violence has prevented her from doing certain activities she may receive an extension of time limits or a waiver of participation in the activities. Also if an immigrant is married to a US citizen or Lawful Permanent Resident who abused them they do not have to have been present in the country for the otherwise required five years to receive these benefits. TAFDC cases are referred to the Department of Revenue for the purpose of collecting child support from the other parent. Sometimes a victim of domestic violence does not feel safe participating in these proceedings if the other parent is their abuser. In these instances she is allowed to receive a “Good Cause” waiver whereby she does not have to participate in child support enforcement. How much a TAFDC recipient receives in benefits each month is partly determined by the size of her family. The woman and each of her children are counted in the budget or grant for her family. However if a woman has another child while receiving benefits that child will be considered a “cap baby” and will not be added to the budget. A victim of sexual assault, who has a baby as a result of that assault, may file for a waiver of the cap baby rule. Another potential source of help available to victims of domestic violence is unemployment benefits. If a victim lost or had to leave her job as a result of domestic violence the law states that she should be qualified for these benefits.

Other Helpful Programs

Victim Compensation is a program of the Massachusetts Attorney General’s Office. It is a fund of last resort for victims of crime who have had to pay out of pocket expenses for medical or psychological treatment or have lost wages because of the crime and have no insurance or other way to be reimbursed. This fund pays up to $25, 000 in compensation for these losses if the crime was reported within five days and the victim cooperates in the prosecution. Victims have three years to after the crime to file the application. The Massachusetts Secretary of State’s Office sponsors a mail forwarding program called the Address Confidentiality Program. This program provides a post office box to victims of domestic violence, sexual assault or stalking. Victims may use this P.O. box at state and local government agencies and do not need to use their physical address to register their car or on their driver’s license. This is a protection from abusers who are savvy about accessing databases to find the victim.