In Massachusetts the spirit of restraining orders must be obeyed as well as the letter of the order.

Until recently I advised clients that they could not be convicted of violation of a restraining order in Massachusetts unless three elements were proven:

1.  A clear order

2. A clear violation; and

3.  An ability to comply with the order.

The first two elements are fairly clear. The third element covers situations like a chance encounter in a store or a restaurant. A chance encounter should not result in criminal conviction. This still seems to be the status of the law.  However, a series of recent cases changed the element of a clear order. Now, a person subject to a restraining order must obey the clear language of the order as well as the intent of the order.

In the case of Commonwealth v Telcinord a woman was ordered to stay away from her husband and to stay 50 feet away from him. She followed him in her car as he drove his car. Presumably she stayed the requisite 50 feet away. She was convicted of violating the restraining order because following in her car was a violation of the order to stay away. The defendant's behavior by the way she drove her car indicated that she wanted her husband to know she was following him and that she intended to confront him.

It appears that engaging in behavior that is intended to cause the protected person to become aware of the whereabouts of the defendant is a violation of the restraining order. A restraining order is intended to insulate the protected person from the presence of the defendant or from any form of unauthorized contact. Any intentional contact that causes the protected person to see the defendant may be considered to be a violation of the order.

In Commonwealth v Goldman, the Court explained what “stay away” in a restraining order means. Stay away

prohibits a defendant from (1) crossing the residence's property line, (2) engaging in conduct that intrudes directly into the residence, and (3) coming within sufficient proximity to the property line that he would be able to abuse, contact, or harass a protected person if that person were on the property or entering or leaving it. A protected person need not actually be present for such a violation of the order to occur.

Stay away can no longer be interpreted as a set distance. It is a concept that the person should stay far enough away from the protected person and their home so that the protected person can go about their activities without coming into contact with the Defendant. Truly accidental contact won't be a crime but contact in the vicinity of a protected person's home or work is likely to result in a conviction for violation of a restraining order.

If you are subject to a restraining order I recommend that you contact a lawyer familiar with restraining orders so that you understand what you are permitted to do and what you are not permitted to do.

Smart Homes and Divorce

People now have the ability to interact with their homes in a way that wasn't even imagined ten years ago. We now have the ability to control things when we are away from our homes. We can turn lights and appliances on and off. We can change the temperature in the home by controlling the thermostat.  We can set off alarms, activate cameras and look inside the home, and speak through devices to people in the home and outside. We can track cars and cell phones. We can even monitor driving habits.

All of these smart applications are designed to make our lives better. However, they can allow a new type of abuse and harassment when a couple split up and one partner moves out of the home. The person out of the home can now control all of these devices and use them to annoy or abuse the partner in the home. Imagine the distress created if one partner finds out that their whereabouts have been tracked by a smart application on their phone or car. People can be hit with large heating and utility bills if the heat is turned up or lights turned on when a person isn't home.

No matter how much trust exists within a marriage, precautions should be taken when a couple separate. The first thing that should be done is to change all passwords for all devices. You may be able to block the other partner from using the applications. All accounts for these items can be transferred into the name of the spouse in the home. The other thing that can be done is to get a court order that prohibits the other person from using the applications.

In most divorces, the partner remaining in the marital home obtains a court order that gives that person exclusive use of the home. Sometimes a similar order issues for use of cars. It is a simple matter to add language that prohibits the other partner from using any smart applications or devices that impact the home, car, or cellphone. Violation of this order can result in sanctions from the court.

Perhaps the biggest fear is that one spouse can track the movements of the other and then use this information in court in a divorce trial. Obtaining an order that prohibits use of the tracking applications should prevent any use at trial of this type of information.

Any time a household breaks up and results in a divorce or other litigation the parties should consult an experienced family law attorney. This attorney can give advice and propose a course of action to minimize problems from smart technology and to obtain a court order to prohibit abuse by smart technology.

October is National Domestic Violence Awareness Month

By presidential proclamation, October was declared to be National Violence Awareness Month. Nobody should be subject to domestic violence. If you or someone you know is in an abusive relationship you need to get help. You can get information about domestic abuse from the Frequently Asked Questions about abuse at my web site. You can talk to an attorney or even call the police. Understanding your options may help you take steps to protect yourself. The courts can issue restraining orders to protect against violence and, in certain circumstances, can make orders of child custody and support. If you are in an abusive situation there are people and services who can help you.

What can a parent do when they are the victim of parental alienation?

There is no perfect answer to this question. As long as one parent keeps fueling the alienation flames, the alienation will continue. Every case of parental alienation is different but the cause is the same. One parent uses the children as weapons to hurt the other parent. In essence, the parent is sacrificing the children's well being to fulfill their own selfish desires. The following suggestions may make no difference or may solve the problem.

1. Keep a diary. This should detail all of your attempts to maintain a relationship with the children and the children's responses. Whenever possible, backup the diary with documents that corroborate the information you note. Emails, telephone bills, and receipts from stores and restaurants should be preserved. Use an email program that documents when the emails are read by the recipient.
   
2. Take advantage of all contacts permitted by the court. Don't miss any visits. Make telephone calls or Skype calls every day if allowed by the court. Use texting to communicate with the children but not excessively. Send gifts or cards for every occasion possible. Cards are created for many holidays such as New Years, Valentine's Day, Independence Day, and many others. Make sure you have copies of the cards and enter the mailing of the cards and the gifts in your diary. Of course, make sure you send gifts for major holidays or events like birthdays or Christmas.
   
3. Attend every event in your child's life. Don't miss a dance recital, a little league, a concert, or any other event in which your child is a participant. Contact the school and obtain information about events, parent teacher conferences, and make sure the school has your contact information. Do the same for the child's pediatrician, dentist, and other doctors. Make sure you are on time for each event.
   
4. Do everything that the court orders. If the court orders counseling, make sure you go to counseling. If the court orders drug tests, make sure you avoid using drugs and take every test ordered. Continue counseling and drug tests even if the children or the other parent stop attending.
   
5. Take a parenting class. You may be the best parent in the world but the court will be impressed by your efforts to improve yourself.
   
6. Never ever use physical force to discipline your children. The law may permit use of reasonable force but you are under a microscope and can't afford the luxury of using physical force. The exception is that you may have to restrain (but not hit) a child to prevent harm to another child, yourself, or someone else.
   
7. Avoid discussions with your child about the alienation, child support, or any issue you have with the other parent. Make sure the children can't hear when you have discussions with other people about these matters.
   
8. Be careful about use of social media. You should assume that everything you post on social media will be reported to the Court. Never say anything critical or negative about your children, the other parent, the attorneys, or the Court. Social media can be used to make positive statements about the children but do so sparingly. Don't comment on every posting by your children. It will make you look like a stalker.
   
9. Tell your children that you love them. Tell them this at the end of every phone call and every visit. Don't overdo this. Once a day is fine. Four times a day makes you look crazy. Don't ask the children to respond in kind. Pressuring the children for affection is certain to hurt you.
   
10. Be persistent and consistent in your efforts to maintain your relationship with your children. Don't give up hope no matter how frustrating it becomes.
    
11. Retain a family law attorney and regularly discuss the parental alienation and your efforts to maintain the relationship. In many cases, only court action can stop the abuse to the children. An experienced family law attorney should be able to advise you about when to resort to the courts. Like everything else in regards to parental alienation, it may take a number of court actions before you start to see results.  In the most severe cases of parental alienation the court can  change custody.
    

Cyberharassment is still harassment

The internet provides new opportunities to commit criminal acts. However, in many instances, laws that were not designed for the internet provide remedies. A recent case illustrating use of a traditional law to punish internet conduct is Commonwealth v. Johnson, 470 Mass. 300 (2014).

In this case, a husband and wife harassed their next door neighbors through a third person. They placed false ads on Craig's list so that potential buyers of goods would bother the family day and night. They filed a false claim of child abuse with the state resulting in an investigation of the family. In addition, threatening emails were sent.

Massachusetts G.L. c. 265, § 43 punishes as a criminal act causing a pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person. The statute does not mention internet, computers, or cyberspace. However, the court found that this statute was sufficient to convict a person who used the internet and computers to harass someone.

Just because computers and the internet became household items after most criminal laws were created doesn't mean that they are not governed by the laws that predated the internet. If you are the victim of harassment you should consult an experience lawyer who can advise you concerning the laws that are available to protect you.

Arrests made for violating restraining orders by social media contacts

Recently there have been several cases in which people have been arrested for violating restraining orders by contacting the protected person by social media. I have written about this topic in the past on my blog. These cases are the first cases I have found in which someone was arrested for using social media and violating restraining orders.

In December, 2013, a man in Beverly, Massachusetts was arrested because he sent his girlfriend an invitation to join his circle on Google Plus. He claimed that he didn't send the invitation and that he has no idea how it was sent. With Google Plus, people create circles as a way of expanding their social network. When a person is added to a circle, Google may send an invitation to that person. This is the equivalent of “liking” a person on Facebook.

Thaddeus Matthews, a radio show host in Memphis, was arrested after he “liked” a video posted on Facebook by a woman who had a restraining order against him. When a person “likes” a posting on Facebook, the “like” is posted on the Facebook wall of all “friends” and the person who posted the original posting. Although a person may claim to not understand the workings of Facebook, a court is likely to not believe this. The result for Thaddeus Matthews is that he is likely to be convicted of a crime.

Restraining orders require the restrained person to have nothing to do with the protected person. In almost all cases, this means that the restrained person can't follow or spy on the protected person. This prohibition should include cyber stalking. Thaddeus Matthews should not have been looking at postings by his former girlfriend once the restraining order issued. As I recommended in my previous blog post on this topic, once a restraining order issues, the restrained person should “unfriend” the protected person.

Restraining orders can  be difficult to understand and obey.  A person served with a restraining order should consult an experienced attorney who understands domestic abuse orders.  If that person uses social media, they should ask the lawyer about how to use social media and not violate the restraining order.

Threats to publish nude pictures resulted in conviction for extortion.

According to an article in The Valley Dispatch, a man was convicted of extortion as a result of texting threats to publish nude pictures of the victim. In this case, a the victim got a restraining order against the Defendant. He then sent texts and made calls to the victim's cell phone threatening to publish nude pictures of the victim on Facebook. Besides violating the restraining order, these threats also constituted the crime of extortion.

The elements of the crime of extortion are (1) a malicious threat (2) made to a named person (3) to accuse someone of a crime or to injure someone's person or property (4) with intent to extort money or something of value. In this case, a threat to publish nude photos is a malicious threat. He made the threats to a named person, the woman who took out the restraining order. While publishing nude photos is not accusing someone of a crime, it would constitute an injury to the person of the woman. Harm to reputation or ability to obtain employment is harm to a person. Extortion is not limited to physical harm. It includes emotional and psychological harm. The element of intent to extort something of value means of value to the Defendant. It does not have to be money. In the case of Commonwealth v. Miller, 385 Mass. 521 (1982) the value obtained was sexual intercourse.

When a restraining order issues, the person who is restrained should consult an experienced attorney to understand the requirements of the restraining order to avoid going to jail.

Remy Murder Case: DA doesn't deserve criticism.

A case in Massachusetts that has received national attention is the unfortunate murder of 27 year old Jennifer Martel. The person arrested for this murder is 34 year old Jared Remy. He is the son of former Red Sox star and current Red Sox announcer, Jerry Remy. This case has received attention because of the brutal way the woman was murdered, the celebrity status of the father of the murderer, and the fact that the police arrested Jared Remy the day before the murder and he was released by the court. The press in the Boston area has criticized the District Attorney, Marian Ryan, for the release of Jared Remy on bail the day before the murder. In this case, the attacks on the DA by the Boston press are unjustified.


I am not involved in this case so the facts, as I understand them, come from news reports on the internet. These reports can be found on the web sites of the Boston newspapers.


Jared Remy has a long history of wrongful behavior. He has been arrested at least fourteen times, had two restraining orders from different women in the past, and was charged on one occasion with violating a restraining order. However, there was no documented incidents of abuse in the Remy-Martel relationship and all previous charges of violence were at least eight years old.


During the night of Tuesday, August 13, 2013 the police were called to the home shared by Jared Remy and the victim. They arrested Remy for domestic assault and battery based on statements by Martel that Remy had pushed or slammed her head into a bathroom mirror. The police noted that there were no marks on the mirror, no damage to the mirror, and no bruising or other marks on Martel. Martel also declined medical treatment. In other words, there was no physical evidence to corroborate the claims by Martel.


Ms. Martel obtained an emergency abuse restraining order during the night. This order was issued based on a telephone call in which Ms. Martel spoke to a Judge. The order probably ordered that Remy stay away from Martel and their home and not abuse her. The order, pursuant to Massachusetts law, expired at 9:00 AM at which time, Ms. Martel had the ability to appear before a Judge in Court and request a restraining order against Remy for a longer period of time. Ms. Martel failed to appear in Court the next morning to request the restraining order. The District Attorney’s office called Ms. Martel when she did not appear. She told prosecutors that she did not want them to extend the emergency restraining order. Jared Remy was arraigned before the Court and Remy was released on personal recognizance with a bail warning and a no-abuse order. The Court did not order that Remy stay away from his home or Martel.


A bail warning is warning given to a defendant that they are under an order not to commit any crimes while they are released on bail. If they commit any crime, no matter how minor, the defendant can be held without bail while awaiting trial. A no-abuse order is an order not to commit abuse against the victim of the first crime.


Thursday night the police again responded to a call to the shared home of Remy and Martel. They found Martel with multiple stab wounds. She died shortly after the police arrived. Witnesses saw Remy on top of Martel stabbing her on their patio. One neighbor tried to stop him. When the police arrested Remy his clothes were soaked in blood. According to the press, there is no question about who committed the murder.


Many news reports and commentary in the Boston area blame the District Attorney for the murder. According to these reports, the DA should have sought to impose a stay away order on Remy as a condition of bail. While this may sell newspapers, it doesn't make much sense.


The court ordered Remy to not abuse Martell and to not commit any crimes. Obviously, the court orders did nothing to prevent the murder. If a person is willing to commit murder, why would anyone think that they would obey a court order to stay away from a person. He violated two orders of the court and committed the most heinous of crimes. Why would one more crime deter him?


In Massachusetts, bail hearings are controlled by G.L. c. 276, § 58. Under this statute, the purpose of bail is to assure the person will return to court when ordered to do so. While Remy had a lengthy history of court cases, the press never reported that he failed to appear in court when ordered to do so. In fact, a lengthy criminal record without a “default” for failing to appear is a good reason to release a person on personal recognizance. Of all the articles in the press that I saw, none of them gave any reason for a judge to impose bail other than he committed a murder the next day. I assume that the other factors that a judge must consider under the statute supported the release on personal recognizance.


Masssachusetts has another statute that applies to bail hearings. The second statute applies if the District Attorney chooses to argue to the court that a person is dangerous and should not be released without conditions. This statute, G.L. c. 276, § 58A, requires notice be given to the defendant and that he be allowed to prepare for an evidentiary hearing on the matter. In this case, given the information known on Wednesday morning, there is nothing to suggest that a judge would have found Remy dangerous under the statute and have done something that would have prevented the murder. (As I indicated above, an order for Remy to stay away from Martell would likely be ignored by Remy as evidenced by the fact that he chose to commit murder.) The victim alleged domestic abuse of pushing her into a mirror. She had no visible injuries or bruises. The mirror had no marks or damage. She refused medical care. She didn't appear in court to extend a restraining order. She told the police that she didn't want a restraining order and wanted Remy released. If she testified, she probably would have testified that she was not in fear of harm. Remy had a record of eight years of no problems and no prior evidence of violence with Martell. While there was a record from more than 8 years ago that would have supported a finding of dangerousness, there was no recent record. Given these facts and the statement by the victim that she was not in fear, there was no basis for the District Attorney to request a dangerousness hearing.


It is easy to look at the murder and blame the District Attorney for failing to control Remy. However, given the laws in Massachusetts and the facts in this case, the District Attorney could not have provided more protection to Martell.


It appears that Martell stayed away from the home with Remy until Thursday night when she returned to Remy the engagement ring he had given her. Perhaps she should have consulted an attorney before she approached Remy about a breakup. While I am not blaming the victim, I think that people can take some easy steps to avoid confrontation. Martell could have brought someone with her, or met Remy in a public place. She could even arrange for a police officer to accompany her when she returned to the house. When domestic abuse occurs, both parties should consult an experience lawyer for advice.
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Restraining orders and Facebook*

Does a court ordered domestic abuse restraining order effect the way a person uses Facebook or other social media? In Massachusetts a typical domestic abuse restraining order includes a no contact and no abuse order protecting an individual or an individual and their children. As an example, a Court may order John to stay 100 yards away from his wife Jane and his children Mary and Sam. In addition, John is prohibited from contacting or abusing Jane, Mary, or Sam. Violation of any of these orders is a criminal act subjecting John to possible arrest and criminal prosecution. If convicted, John could be incarcerated. John is a user of Facebook and has been a user for years. His wife Jane and possibly his children are “friends” on Facebook. He and Mary have common “friends” on their Facebook accounts.

The first thing that John should do is to “unfriend” Jane and the children. As friends, his wife and children will receive postings from John's Facebook page on their own Facebook pages. Any postings by John that appear on Jane's Facebook page could easily be considered to be a violation of the no contact order. Since John is aware that Jane is a “friend” he should be aware that his postings will appear on the “walls” of his Facebook friends. This should be sufficient to constitute an intentional act that violates the no contact provision of the restraining order. However, is unfriending his wife and children sufficient? Probably not.

John should avoid mentioning Jane, Mary, and Sam in his Facebook postings. Even if John writes that “I love my children and will never stop loving them” he could be arrested. While I believe that such a posting doesn't violate the restraining order if the wife and children are no longer friends, my opinion is not enough to stop him from being arrested. Since John and Jane have common friends, one of these friends may tell Jane about the posting. If Jane calls the police, the initial decision about arresting and prosecuting John will be made by the police or Assistant District Attorney. The problem is that not every police officer, Assistant District Attorney, or even Judges understand Facebook and how it works. As a result, a criminal case can be filed against John. It is small comfort for John that at trial or on appeal, the case is dismissed. He may spend time in jail and may have to spend thousands of dollars to hire a lawyer and possibly an expert witness to fight the criminal case. The better choice is to avoid conduct that may result in the criminal charges.

I recommend the following actions if a order issues:

1. Immediately “Unfriend” the person identified in the restraining order as being protected.
2. Do not write or post anything online that uses the name of the protected person or an other term that identifies them. Identifying Jane as “my wife” or writing about “my children” is the same as identifying them by name.
3. Do not post any pictures or video of the protected person.
4. Do not discuss the restraining order in a public forum like Facebook.
5. Adjust your security settings on Facebook so that protected person can't see your content. 

If you are the subject of a restraining order you should consult an experienced lawyer to help you understand the order. There may be parts of the order that are not clear or confusing. You want to avoid any conduct that can result in an arrest for violation of the restraining order.

* Facebook is used in this discussion but the discussion applies to all social media.

Massachusetts has a law protecting animals from domestic abuse

On October 31, 2012, Massachusetts enacted a new law to protect domesticated animals from domestic abuse. In order to obtain an order under this new law, there must also be a protective order for the protection of people. Under this law, the court can order possession and care of a domesticated animal or issue a restraining order to prevent abuse to the animal. This law elevates animals from property to the status of a member of the family. Violation of the order is a criminal act.

I question the need for this new law as I have had cases in which Judges have issued orders to protect animals. When the Judges have issued orders of this nature, nobody questioned if the Court had the power to make the orders. The Judges never hesitated before making protective orders. Nevertheless, the Massachusetts legislature decided that Judges in Massachusetts need an explicit grant of power to protect animals. In my opinion, the only difference this new law makes is that we now have an official form to obtain a restraining order to protect animals. While lawyers may not have needed this new law, now people who assist pro-se litigants in obtaining restraining orders should also understand that animals can and should be protected.   

Parental alienation can cause a change in custody.

Some people are not satisfied to get divorced. They want to inflict pain on their ex-spouse. When the couple have children, the children afford an easy method of hurting the other parent. Some parents use the children as weapons for the sole purpose of causing emotional pain to the other parent. They interfere with visitation and attempt to alienate the children from the other parent. Not only is this harmful to the other parent, it is also harmful to the children. In a recent case of Barrington v. Barrington, the Court changed custody from mother to father due to parental alienation.

The focus should be on the best interests of the children. Parents should try to get along for the benefit of the children. Divorce lawyers should guide their clients to avoid this type of harmful behavior.

How much notice do you need to "know" about a restraining order?

Apparently, very little notice is required to serve legal notice of a restraining order. In the recent case of COMMONWEALTH v. MELTON, 08-P-2143 (Mass.App.Ct. 9-2-2010) the woman who got a domestic abuse restraining order told her former boyfriend in a telephone call that a restraining order had issued against him. He was never served with a copy of the order nor told by the police that an order had issued. The only way he had any notice of the order was from his former girlfriend. Because he called her after she told him about the order, he was convicted of the crime of violating a restraining order. The problem is that she could have lied about the restraining order. This would have given her an unfair ability to torment him by telling him that a restraining order had issued when it had not.