The Massachusetts trial court system has issued the fourth edition of Guidelines for Judicial Practice: Abuse Prevention Proceedings. The updated guidelines reflect a number of substantive and procedural changes, and reflect changes in statutory and case law since the guidelines were last revised in 2000. Hat tip to Massachusetts Law Updates.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Showing posts with label Domestic Violence and Restraining Orders. Show all posts
Showing posts with label Domestic Violence and Restraining Orders. Show all posts
Father's Day Gift From the MCAD
Just in time for Father's Day, and much to the apparent dismay of employers, the Massachusetts Commission Against Discrimination recently gave a surprise gift to working fathers in this state. It seems the Massachusetts Commission Against Discrimination is now really getting serious about the issue of discrimination against men, and has abruptly decreed that the Massachusetts Maternity Leave Act applies to men. See Massachusetts Maternity Leave Act Applies to Men - Boston Employment Lawyer Blog and Massachusetts Lawyers Weekly - Men now eligible for maternity benefits.
From these reports, it appears that men may only be getting this equitable treatment now because someone figured out that continuing to discriminate against men in general would require discriminating against gay men as couples. As MCAD commissioner Martin Ebel put it:
Now, I have to wonder, if "maternity leave" can so easily be transformed into "parental leave," what exactly will be next? Will we have a federal Violence Against Men and Women Act(VAMWA), to replace the Violence Against Women Act(VAWA), in long-overdue recognition of the fact that domestic violence goes in every direction, male on female, female on male, male on male, and female on female? At last, will there be equal rights for male victims of domestic violence? I'm not holding my breath. But maybe equality is contagious.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
From these reports, it appears that men may only be getting this equitable treatment now because someone figured out that continuing to discriminate against men in general would require discriminating against gay men as couples. As MCAD commissioner Martin Ebel put it:
If two women are married and adopt a child, then they are both entitled to leave under the [MMLA], and yet if two men are married and adopt a child, they would be entitled to no leave under a strict reading of the statute. That result was troubling to us, and we didn’t think it was in keeping with our mandate by statute, which is to eliminate, eradicate and prevent discrimination in Massachusetts.
Now, I have to wonder, if "maternity leave" can so easily be transformed into "parental leave," what exactly will be next? Will we have a federal Violence Against Men and Women Act(VAMWA), to replace the Violence Against Women Act(VAWA), in long-overdue recognition of the fact that domestic violence goes in every direction, male on female, female on male, male on male, and female on female? At last, will there be equal rights for male victims of domestic violence? I'm not holding my breath. But maybe equality is contagious.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Divorcing, But Still Living Together, in a Bad Housing Market
There's a great article in today's Boston Globe Sunday Magazine, by Lisa Prevost, about the effect of the declining housing market, and the credit squeeze, on divorcing couples, many of whom are now forced to stay together longer than they may have wanted or intended: Two Exes, One Roof - The Boston Globe ("Two Exes, One Roof - What happens when a divorcing couple meet a slow housing market? Usually, it's not pretty.") As you can see from the excerpt below, I am one of the attorneys quoted in the article.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website."DESPERATE" IS AN APT DESCRIPTION FOR ANY NUMBER of homeowner scenarios these days, as declining home values and tighter credit continue to squeeze sellers. When it comes to divorcing couples, however, the steep drop-off in housing sales is making some bad situations truly awful. Dramas are playing out across the region as couples who no longer want to stay together, but can't afford to live apart, are winding up prisoners in their own homes. Either houserich and cash-poor, or simply overextended on all fronts, these couples are retreating to the far corners of their houses as they await the buyer who will free them.
Family law attorneys, mediators, and real estate professionals say that while this scenario isn't necessarily new, its rising incidence is very much a sign of the times. Divorcing couples who borrowed heavily against their homes when values were soaring several years back are now scratching for enough equity to cover their mortgage, lawyer bills, and a fresh start. The financial strain is forcing more of them to stay put until the house sells, a situation that is almost always very uncomfortable.
"In a number of my cases, couples are sharing houses but using separate bedrooms, and it remains to be seen what impact all of this will have on the children," says David A. Hoffman, an attorney, mediator, and founder of the Boston Law Collaborative.
....
Barbara Shapiro, a certified divorce financial analyst and vice president of HMS Financial Group in Dedham, agrees that the sliding market is forcing more divorcing couples to remain housemates. The cases she sees typically fall into one of two categories. "You have the couple that's already divorced and had decided they were going to split the house once it's sold. And they can't sell it, or it doesn't make sense to sell it. So they're scrambling to adjust," she says. "And then there are people who are saying, 'We can't get divorced - we can't afford it.'"
The latter sentiment turned up unexpectedly in a divorce case handled last year by Steven Ballard, a lawyer in Worcester and Wellesley. He was representing a woman in particularly bleak circumstances: She had a restraining order against her husband, who had moved back in with his mother. The wife worked but couldn't cover the mortgage payments and expenses on their house without her husband's income. Because they owed more than the house was worth, foreclosure loomed as a possibility. Still, Ballard didn't see taking the husband back as an option. Much to his dismay, his client did. The couple reconciled. "I'd seen financial problems lead to divorce," Ballard says, "but I hadn't seen it save a marriage."
....
The Alternative to CORI Reform: Let's Just Order Them to Re-Offend
Thanks to John Monahan and the Worcester Telegram and Gazette for an excellent article yesterday about the fact that CORI reform is now unlikely. The CORI reform proposals, introduced and backed by Governor Patrick, and as discussed and strongly supported by me here at this blog,
have run aground in the House Judiciary Committee, and the chances of the law covering criminal records being reformed before the Legislature ends formal sessions for the year in July now seem remote.The reason? According to the article:
Earlier this week, Rep. Eugene O’Flaherty, D-Boston, chairman of the House Judiciary Committee, reported that the bill has run into a lot of “roadblocks” because of the many complicated issues involving reintegration of ex-convicts into communities and the interest of employers to job screen applicants. His comments gave little hope the bill could be acted on soon.
Right. So, in other words, the CORI reform effort, which is in fact the effort to help reintegrate past offenders into society, by giving them a chance to housing and a job, and that is by reducing the extremely overbroad access of employers to information - information about not just convictions, but even about long-ago charges that led to dismissals or acquittals - has been derailed because employers still want that information, and they have the power on Beacon Hill.
This will be great for these employers, as they will continue to be able easily to identify a special kind of underclass, one that they can either avoid hiring altogether or relegate to lower paying, less desirable employment due to its much diminished bargaining power in the labor market.
But the collateral consequences of failure to reform CORI are that taxpayers will have to pay more for social services to make up for the economic deficiencies, and also more for the criminal justice system - including for law enforcement, our overcrowded jails, and the criminal courts and probation departments - as that criminal justice system will continue to be busy, if not busier, as a result.
The big employers blocking change are at the top of the economic ladder. Basically this is just another way in which the most powerful, wealthy interests are asking the majority of us as taxpayers to pay more taxes to cover the collateral damage that inevitably results from a system designed and created more for the benefit of these most powerful, wealthy interests than for anyone else.
I'm not saying individuals are not responsible for their crimes. However, I am a realist, and I believe the evidence is overwhelming that good, sound economic policies reduce crime. The attempt to block CORI reform seems to me to be just another unsound economic policy (and it is assuredly an economic policy as much as it is a criminal policy) and it probably deserves a chapter in the ongoing, unwritten history of Class War.
I have heard fellow criminal defense attorneys complain, often after a judge in a criminal case gives a poor criminal defendant on probation a short period of time to come up with very stiff probation fees, or when a judge sets very onerous conditions on probation, that "the judge just set him up to fail" or even - and this is my personal favorite - that "the judge just ordered him to re-offend."
Sort of a cynical joke among lawyers, maybe, but this is no real joke for those who have been in the world of crime, and now can't get a job or housing because of it. There are certainly criminal defendants on probation who have committed new crimes in order to get the money to pay their probation, court fees, restitution, or other court-related expenses, as they often find it difficult, if not impossible, to find a legitimate job.
And if former criminals, just like those currently on probation, also can't get a legitimate job or housing, they are more likely both to become dependent upon government benefits of one kind or another, and also either to steal, or sell drugs, or commit other crimes, just in order to survive. This is the difficult, cold, hard reality of former criminal offenders.
So I must ask, in that same, lawyerly cynical spirit: Is our legislature, at the behest of employers, going to deny CORI reform and instead "order former criminals to re-offend"?
For information and links related to Massachusetts criminal law see the criminal defense page of my law firm website.
Joint Custody Presumptions - And Now For The Opposing View
While we in Massachusetts are debating, most recently in the Boston Globe, the wisdom of the proposed joint custody presumption here in Massachusetts, it seems the legislature of Minnesota is studying a similar proposal in that state. In Minnesota Divorce and Family Law Blog: Joint Physical Custody Presumption Subjected to Study, Minnesota divorce lawyer Gerald Williams points out many reasons why he believes the proposed custody presumption there would not be a good thing.
I haven't read the Minnesota bill, but certainly his comments are generally relevant to our conversation here in Massachusetts. Although I am in support of the proposed shared custody presumption here in Massachusetts, I do acknowledge, and even agree with, many of the points often raised against such presumptions. Many of the best arguments against such presumptions are contained in Gerald William's post. It would be good to read it if you are interested in this.
Specifically, Williams explains why the proposed shared custody presumption in Minnesota might very well increase the likelihood of conflict, both in and out of court (many proponents of such a presumption often argue that such a presumption would decrease conflict). I think this is a very important point. I have never joined with other supporters of the shared custody presumption in believing that conflict would magically disappear once we have such a presumption in place. I'm not at all sure whether there would be more or less conflict as a result and no one knows for sure.
Perhaps even more troubling, he further points out that the Minnesota proposal, by including the obvious exception to the presumption in cases of domestic abuse (there is also this in the Massachusetts proposal) would actually be likely to lead to an increase in the use of false allegations in domestic abuse proceedings, as more litigants would have an incentive to make such claims to escape the joint custody presumption:
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
I haven't read the Minnesota bill, but certainly his comments are generally relevant to our conversation here in Massachusetts. Although I am in support of the proposed shared custody presumption here in Massachusetts, I do acknowledge, and even agree with, many of the points often raised against such presumptions. Many of the best arguments against such presumptions are contained in Gerald William's post. It would be good to read it if you are interested in this.
Specifically, Williams explains why the proposed shared custody presumption in Minnesota might very well increase the likelihood of conflict, both in and out of court (many proponents of such a presumption often argue that such a presumption would decrease conflict). I think this is a very important point. I have never joined with other supporters of the shared custody presumption in believing that conflict would magically disappear once we have such a presumption in place. I'm not at all sure whether there would be more or less conflict as a result and no one knows for sure.
Perhaps even more troubling, he further points out that the Minnesota proposal, by including the obvious exception to the presumption in cases of domestic abuse (there is also this in the Massachusetts proposal) would actually be likely to lead to an increase in the use of false allegations in domestic abuse proceedings, as more litigants would have an incentive to make such claims to escape the joint custody presumption:
One other concern is the domestic abuse exception that is written into the bill. The domestic abuse laws of Minnesota are good laws, with a very bad downside: false accusations. Domestic abuse proceedings are the classic, quintessential "he said, she said", and many litigants use the laws, in bad faith, as a tactic for undue advantage. This unfortunate practice would become only more common in the instance of a joint physical custody presumption with a domestic abuse exception.Of course, one obvious answer to that is that we also need reforms to reduce the incidence of such false allegations and fraudulent restraining orders, and fathers' groups, including Fathers and Families here in Massachusetts, have long called for such reforms as well. But still, we have to consider the very real possibility that mudslinging and false allegations would increase under a shared custody presumption, as we decide both whether we want to adopt such a presumption, and if so, how exactly we want to craft such a new law.
I certainly believe neither the current unstated presumptions or assumptions, nor a new, formal presumption in favor of joint custody can lead to a perfect system that will equally suit every type of family conflict. We have to make a choice, and the choice we make will likely cause more conflict in some instances and less conflict in others. But we can really only speculate as to how much more, or less, conflict we would face if such a presumption were adopted.
Of course, there are other concerns and interests, besides the degree of conflict in and out of court, which should guide us, and chief among them, I believe, is the interest in truth. The better, fairer, and more efficient are the mechanisms for getting to the truth in court, the more likely we will be to effect the best interests of children. That is so because, even though judges are quite fallible, they do generally desire to achieve what they believe is the right result. I believe most, if not all, of the apparent bias of judges would disappear once specific facts appeared to rescue them from their hunches and prejudices. The easier it is to get to the truth, the more often the right result will follow, whether the judge decides the case or not. And that is so because litigants - once they believe the truth would be likely to come out in court before either parent could gain an irreversible, unfair custody advantage - would be more likely to settle on that right result, whatever it is, rather than go to battle in court.
The bulk of cases will still be resolved by agreement, and mostly sooner rather than later, no matter whether we keep the current system or move to a formal presumption, and whether we have slightly more or less conflict in those toughest cases. The most important question for me, then, is what kind of system will lead to the fairest, best result for the most children. On balance, and speaking only for Massachusetts, based on my experience here, I think the shared custody presumption proposed here in Massachusetts, unless we can get the better reforms I proposed (see links to my posts below), would be a good move for us. However, there are certainly valid concerns on the other side, many of which you can find in the Minnesota blog.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Fairness for Fathers -The Boston Globe Weighs In, But Doesn't Really Get It
The Boston Globe yesterday opined on the shared parenting bill, introduced by State House Representative Colleen Garry, a Dracut Democrat, and cosponsored by about 50 other legislators, including many of the legislature's most thoughtful and courageous members, as well as the progressive Fathers & Families organization. In A fair role for fathers - The Boston Globe, the Boston Globe paternalistically (or should I say "maternalistically"?) condescended to admit that the idea of shared parenting is appealing, even while it predictably rejected the idea without any convincing explanation or any alternative proposals for reform.
I myself believe that, short of other, more comprehensive reforms that would make the family court fairer to children, the shared parenting presumption proposed in this bill makes a lot of sense. Some of the reforms I would prefer to see include mandatory evidentiary hearings at the temporary orders hearing stage of all divorce and family law proceedings where physical custody is in contention, and other reforms designed to force judges actually to hear facts, presented as evidence in court, rather than to make conclusions based on short motion hearings, followed by delegation of investigatory authority to guardians ad litem, who are very often incompetent, biased, or both, after which the temporary orders often become permanent orders, without regard to what would truly be in the best interests of the children. Also, I would like to see standards raised for judges, greater accountability for judges, for judicial pay to be raised, and many other badly needed reforms to make the judicial process more competent, fair and efficient.
We need facts, and custody cases should be fact-driven, and decided on a case-by-case basis, and should not be prejudiced by procedural obstacles to having those important facts presented in court. It is interesting that the Boston Globe argument actually seems to make just this point, but in doing so quotes the very knowledgeable Professor Kindregan, with whom I usually agree, in an attempt to discredit the shared parenting initiative and to defend the status quo:
That's why there should be immediate evidentiary hearings in court when custody is in dispute, not 15-minute temporary orders hearings where no evidence is heard, but failing that, there should be no premature award of custody to one of the two parties until the facts are presented. When a couple is married, they both have custody by operation of law. It is not clear why that should so quickly be taken away from one party, right at the point of the marital split, as it so often is, before any evidentiary hearing, or trial, takes place.
Actually, the shared parenting bill aims to do much the same thing as would my proposal for more - and earlier - fact-finding, evidentiary hearings, by requiring that the court actually hear evidence and enter findings before giving sole physical custody to just one of the two parents.
Unless and until we can get the greater, more comprehensive reforms I favor, I think shared parenting presumptions, or at the very least some change in the direction of more enlightened states, such as California, and even New Hampshire, which have progressively reformed their family law language and procedure, should be implemented. I support this bill just as I have long supported affirmative action for minorities, and gay and lesbian rights, and for similar reasons: there is irrational discrimination and it needs to be remedied. We need a push in the right direction. We needed a push in the civil rights arena, and we got it with civil rights legislation and affirmative action. We needed a push for gay and lesbian couples and the Supreme Judicial Court gave us one.
Let's face it. If decisions have to be made without the presentation of facts, presented by witnesses under oath, under cross examination, "temporary" custody decisions will necessarily be made based on less reliable things, including self-serving he-said, she-said allegations in short motion hearings by attorneys about what the facts will supposedly show at trial. In such cases, there will always be presumptions or assumptions. The question then becomes: What kind of presumptions or assumptions do we want to have?
Indeed, in the absence of such a presumption of joint physical custody, or shared parenting, we will continue to have the unstated, actual presumption or assumption that favors the illusory status quo, that unstated assumption that purports to keep things as closely consistent with how they appeared to have been before the splitup by keeping things as they appear to be now, i.e. the children would remain as they happen to have been placed through the chaotic, anarchic process of domestic splitups, which far too often leave the children under the sole control of the mother. Of course, often the children happen to be with the mother during this anarchic process because the mother is and was in fact the primary caregiver and the more active parent; however, when that is true, the mother should not suffer on account of a requirement that the court actually look at the facts and make findings before awarding custody to her alone. (Indeed it should help her to fend off, very early in the litigation process, any frivolous claims for custody.)
Yes, now we need a push in the family law arena that we can accomplish through a change in the language and attitude of family law. Such a change would help people, including our decision makers, to see the light and stop discriminating in the inadvertent, unthinking way they often do. But the dilemma, I'm afraid, is that we may in fact need more people to see the light before any changes will be made. There are several facts that a majority of voters will probably need to acknowledge before any real reform will happen, and to do so, they will have to open their minds and overcome their predilection to side unthinkingly with the politically correct:
I have hope as I see some improvement in the attitudes and wisdom of members of the family law community, and I feel very encouraged by the success of organizations like Fathers & Families. However, I really strongly believe that we should do our best to effect the best interests of children in every case, and unfortunately, the best interests of the children are actually not being served in many, many cases. Frankly, and to put it bluntly, too many children are being placed with their mother when they should instead be placed with their father, and even more children are being placed solely with their mother when they should instead be placed with both parents in a shared parenting arrangement. Although I would prefer more comprehensive reforms, as I have indicated, I certainly believe this proposed shared parenting law would help us to achieve the best interests of many more children than we now do.
Over the years, as I have practiced family law in Eastern Massachusetts, representing both women and men, in every kind of situation - mothers with sole physical custody, fathers with sole physical custody, and both mothers and fathers with joint physical custody - I have watched this state adopt progressive reforms benefiting gay and lesbian couples, while simultaneously failing to make equivalent progress, and real justice, for the vastly greater number of children, mothers, and fathers who come from "traditional" homes with a father and a mother.
Massachusetts is my adopted, not my home, state. I have often been attracted by the progressive spirit of this state, but perplexed often by its seemingly contradictory, traditional, conservative, even reactionary forces. I find in the family law field that this contradictory nature, this strange blend of progressive and regressive forces, may be responsible for the strange alliance and synergy I have witnessed between traditionalists - and I mean in fact "paternalistic" traditionalists - and radical feminist ideologues who have demonized men, often without any sense of reality. It is in part this strange combination of forces, and distorted ideas, that has led to the inequality so obvious in family court today.
Of course, there are many people who are, and will continue to be, in denial about these basic facts. There are actually even some women's groups who claim they are still discriminated against in family court. It wasn't that long ago that they were, but now it is men who are discriminated against in family court. However, real gender equality, like Cathy Young has advocated, is what we need, and it will require all of us, not least of us opinion makers such as the Boston Globe, to understand and acknowledge reality, both that of the workplace and that of the home. Until then, we will continue to watch real progress on this front take place in other states like neighboring New Hampshire.
But why, I wonder, can't we have feminism, fathers rights and gay rights all at once? They are not mutually exclusive. We have the potential to be the best state in the nation, in terms of equality, tolerance and acceptance in our family and social life. I mean, can't we all just get along? Am I just a crazy dreamer?
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
I myself believe that, short of other, more comprehensive reforms that would make the family court fairer to children, the shared parenting presumption proposed in this bill makes a lot of sense. Some of the reforms I would prefer to see include mandatory evidentiary hearings at the temporary orders hearing stage of all divorce and family law proceedings where physical custody is in contention, and other reforms designed to force judges actually to hear facts, presented as evidence in court, rather than to make conclusions based on short motion hearings, followed by delegation of investigatory authority to guardians ad litem, who are very often incompetent, biased, or both, after which the temporary orders often become permanent orders, without regard to what would truly be in the best interests of the children. Also, I would like to see standards raised for judges, greater accountability for judges, for judicial pay to be raised, and many other badly needed reforms to make the judicial process more competent, fair and efficient.
We need facts, and custody cases should be fact-driven, and decided on a case-by-case basis, and should not be prejudiced by procedural obstacles to having those important facts presented in court. It is interesting that the Boston Globe argument actually seems to make just this point, but in doing so quotes the very knowledgeable Professor Kindregan, with whom I usually agree, in an attempt to discredit the shared parenting initiative and to defend the status quo:
Charles Kindregan, a law professor at Suffolk University, soundly argues that a presumption of joint legal and physical custody could handcuff judges who should be free to consider the best interests of children on a case-by-case basis. "You don't need a presumption when you have facts," Kindregan says. The relevant facts include children's age, temperament, emotional development, and medical needs, as well as how parents get along and how far apart parents live from each other.Amen. Well, of course we need facts. I agree you don't need a presumption when you have facts. That's why I think we should hear the facts immediately. Without facts, there will be presumptions or assumptions that govern behavior, whether written into the law or not, and these presumptions or assumptions will lead to "temporary" custody orders that are hard to change. The problem is the current system generally presents obstacles and long delays for those who would benefit in the early presentation of those facts.
That's why there should be immediate evidentiary hearings in court when custody is in dispute, not 15-minute temporary orders hearings where no evidence is heard, but failing that, there should be no premature award of custody to one of the two parties until the facts are presented. When a couple is married, they both have custody by operation of law. It is not clear why that should so quickly be taken away from one party, right at the point of the marital split, as it so often is, before any evidentiary hearing, or trial, takes place.
Actually, the shared parenting bill aims to do much the same thing as would my proposal for more - and earlier - fact-finding, evidentiary hearings, by requiring that the court actually hear evidence and enter findings before giving sole physical custody to just one of the two parents.
Unless and until we can get the greater, more comprehensive reforms I favor, I think shared parenting presumptions, or at the very least some change in the direction of more enlightened states, such as California, and even New Hampshire, which have progressively reformed their family law language and procedure, should be implemented. I support this bill just as I have long supported affirmative action for minorities, and gay and lesbian rights, and for similar reasons: there is irrational discrimination and it needs to be remedied. We need a push in the right direction. We needed a push in the civil rights arena, and we got it with civil rights legislation and affirmative action. We needed a push for gay and lesbian couples and the Supreme Judicial Court gave us one.
Let's face it. If decisions have to be made without the presentation of facts, presented by witnesses under oath, under cross examination, "temporary" custody decisions will necessarily be made based on less reliable things, including self-serving he-said, she-said allegations in short motion hearings by attorneys about what the facts will supposedly show at trial. In such cases, there will always be presumptions or assumptions. The question then becomes: What kind of presumptions or assumptions do we want to have?
Indeed, in the absence of such a presumption of joint physical custody, or shared parenting, we will continue to have the unstated, actual presumption or assumption that favors the illusory status quo, that unstated assumption that purports to keep things as closely consistent with how they appeared to have been before the splitup by keeping things as they appear to be now, i.e. the children would remain as they happen to have been placed through the chaotic, anarchic process of domestic splitups, which far too often leave the children under the sole control of the mother. Of course, often the children happen to be with the mother during this anarchic process because the mother is and was in fact the primary caregiver and the more active parent; however, when that is true, the mother should not suffer on account of a requirement that the court actually look at the facts and make findings before awarding custody to her alone. (Indeed it should help her to fend off, very early in the litigation process, any frivolous claims for custody.)
Yes, now we need a push in the family law arena that we can accomplish through a change in the language and attitude of family law. Such a change would help people, including our decision makers, to see the light and stop discriminating in the inadvertent, unthinking way they often do. But the dilemma, I'm afraid, is that we may in fact need more people to see the light before any changes will be made. There are several facts that a majority of voters will probably need to acknowledge before any real reform will happen, and to do so, they will have to open their minds and overcome their predilection to side unthinkingly with the politically correct:
1) Most judges are, like all of us, stuck in the past, and limited by their own experiences growing up in a more conservative, traditional world, in which mothers were presumed to be the better caregivers. But as the saying goes, the more things change the more they stay the same. Although judges are getting better and better about acknowledging the expanded role of fathers in children's lives and in entertaining the possibility of shared or even sole physical custody for fathers, they are still, like most of us, stuck in the past, and are, like all of us inclined to decide based on their hunches, biases, and their limited life experiences, when they don't actually see all the facts.
2) Mothers are not necessarily better caregivers, and many fathers are far better caregivers than the mothers.
3) It is very hard, and it takes a long time if it ever even happens, to have the facts presented in court in custody cases. Usually witnesses and evidence are not ever presented, as by the time the parties can proceed to trial, the result is already a forgone conclusion, based on the precedent set by temporary orders and preliminary custody determinations and agreements made without the benefit of any evidentiary hearings on the matter.
4) A mother is more likely to get custody, even in situations where the father is the better parent and the children would be better off with him. All other things being equal (such as access to financial resources to fight, ability to parent the children, level and degree of parenting involvement with the children), mothers have an unequal advantage, and are in a much superior bargaining position in custody disputes.
5) The family court procedure gives advantage to the person with present control over the children, and gives the mother easier means of securing that kind of control, including but not limited to the ready availability of restraining orders, which can be, and often are, easily brought and obtained through fraudulent, false allegations. Securing this kind of control of the children through manipulation or fraud is much more available at present to women than to men, and there are many ways in which the current domestic violence system is very discriminatory toward men.
6) It is usually, but not always, true that mothers are the more involved of a child's two parents in traditional relationships, as that has historically been the case. But even in those typical situations, it is not always true that children are better off having one parent have the children 70 percent or more of the time after their parents split up. Most children will benefit from having time with both parents on schooldays and on weekends, no matter what the division of labor was in the family before their parents split.
7) Fathers had unfair advantages in custody cases, until the "tender years doctrine" and restraining orders gave the upper hand to women in this country in custody battles. The subsequent replacement of the "tender years doctrine" with the "best interests of the child" standard has not resulted in evening the scales of justice. Mothers and women generally still are strongly favored in many ways by the law itself, even though it generally appears on its face to be gender-neutral now, and are favored even more so in the way that law is implemented in family courts in this state.
I have hope as I see some improvement in the attitudes and wisdom of members of the family law community, and I feel very encouraged by the success of organizations like Fathers & Families. However, I really strongly believe that we should do our best to effect the best interests of children in every case, and unfortunately, the best interests of the children are actually not being served in many, many cases. Frankly, and to put it bluntly, too many children are being placed with their mother when they should instead be placed with their father, and even more children are being placed solely with their mother when they should instead be placed with both parents in a shared parenting arrangement. Although I would prefer more comprehensive reforms, as I have indicated, I certainly believe this proposed shared parenting law would help us to achieve the best interests of many more children than we now do.
Over the years, as I have practiced family law in Eastern Massachusetts, representing both women and men, in every kind of situation - mothers with sole physical custody, fathers with sole physical custody, and both mothers and fathers with joint physical custody - I have watched this state adopt progressive reforms benefiting gay and lesbian couples, while simultaneously failing to make equivalent progress, and real justice, for the vastly greater number of children, mothers, and fathers who come from "traditional" homes with a father and a mother.
Massachusetts is my adopted, not my home, state. I have often been attracted by the progressive spirit of this state, but perplexed often by its seemingly contradictory, traditional, conservative, even reactionary forces. I find in the family law field that this contradictory nature, this strange blend of progressive and regressive forces, may be responsible for the strange alliance and synergy I have witnessed between traditionalists - and I mean in fact "paternalistic" traditionalists - and radical feminist ideologues who have demonized men, often without any sense of reality. It is in part this strange combination of forces, and distorted ideas, that has led to the inequality so obvious in family court today.
Of course, there are many people who are, and will continue to be, in denial about these basic facts. There are actually even some women's groups who claim they are still discriminated against in family court. It wasn't that long ago that they were, but now it is men who are discriminated against in family court. However, real gender equality, like Cathy Young has advocated, is what we need, and it will require all of us, not least of us opinion makers such as the Boston Globe, to understand and acknowledge reality, both that of the workplace and that of the home. Until then, we will continue to watch real progress on this front take place in other states like neighboring New Hampshire.
But why, I wonder, can't we have feminism, fathers rights and gay rights all at once? They are not mutually exclusive. We have the potential to be the best state in the nation, in terms of equality, tolerance and acceptance in our family and social life. I mean, can't we all just get along? Am I just a crazy dreamer?
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Indigent Parents In CHINS Cases Now Get Free Attorneys
The Massachusetts Supreme Judicial Court (SJC) recently looked at two CHINS (children in need of services) cases, one from Worcester County and the other from Essex County, in both of which a juvenile court judge had denied a mother legal right to court-appointed counsel. The SJC ruling in this consolidated case In the Matter of Hilary has now established that parents in these cases do indeed have a right to be heard, may have an attorney representing them in these proceedings, and further have a right to an appointed attorney if they cannot afford one.
For more information about the case, see the February 11, 2008 article by David Frank in the Massachusetts Lawyers Weekly, SJC gives parents right to counsel in CHINS cases.
About this expanded access to justice, the Boston Globe, in an editorial from February 14, A Break For Desperate Parents opined: "Providing lawyers for poor parents could cost roughly $1 million to $2 million a year, according to Mike Dsida, a deputy chief counsel for the state's Committee for Public Counsel Services. This is only fair. Parents accused of abusing their children already have the right to a lawyer if they risk losing custody. Parents in CHINS cases should also have that right."
I completely agree with this recent SJC ruling, which expands in a reasonable way access to justice to parents in CHINS cases, and with its analysis and rationale. I similarly agree with the Boston Globe's commentary.
Furthermore, I believe that this case, and its basic rationale, lend great support to my longstanding position that the SJC should also require the appointment of lawyers to indigent individuals in district courts and family courts when and where they are challenging restraining orders, at the very least when these individuals have children in their home and they risk losing custody. See my previous post touching on this issue here.
The specific issue of access to justice for individuals defending against restraining orders has not yet been before the SJC. I hope that important issue will also be before it at some point soon, and the SJC will fairly and appropriately continue to expand access to justice in a sensible way, as it has done in this recent CHINS case, for which it should be applauded.
For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.
For more information about the case, see the February 11, 2008 article by David Frank in the Massachusetts Lawyers Weekly, SJC gives parents right to counsel in CHINS cases.
About this expanded access to justice, the Boston Globe, in an editorial from February 14, A Break For Desperate Parents opined: "Providing lawyers for poor parents could cost roughly $1 million to $2 million a year, according to Mike Dsida, a deputy chief counsel for the state's Committee for Public Counsel Services. This is only fair. Parents accused of abusing their children already have the right to a lawyer if they risk losing custody. Parents in CHINS cases should also have that right."
I completely agree with this recent SJC ruling, which expands in a reasonable way access to justice to parents in CHINS cases, and with its analysis and rationale. I similarly agree with the Boston Globe's commentary.
Furthermore, I believe that this case, and its basic rationale, lend great support to my longstanding position that the SJC should also require the appointment of lawyers to indigent individuals in district courts and family courts when and where they are challenging restraining orders, at the very least when these individuals have children in their home and they risk losing custody. See my previous post touching on this issue here.
The specific issue of access to justice for individuals defending against restraining orders has not yet been before the SJC. I hope that important issue will also be before it at some point soon, and the SJC will fairly and appropriately continue to expand access to justice in a sensible way, as it has done in this recent CHINS case, for which it should be applauded.
Excerpts from IN THE MATTER OF HILARY:
"The issue of first impression that we decide in these consolidated cases from the Worcester County and Essex County Divisions of the Juvenile Court Department, which are here on a reservation and report, without decision, from a single justice of this court, is whether, after a child is adjudicated a child in need of services (CHINS), a parent is entitled to counsel at the dispositional phase of the proceeding, if custody of the child is at issue. G.L. c. 119, § 39G. Two Juvenile Court judges denied, among other things, the indigent mothers' requests for such court-appointed counsel. Because we conclude that, pursuant to G.L. c. 119, § 29, parents are entitled to counsel at the dispositional phase of a CHINS proceeding if the judge is considering awarding custody to the Department of Social Services (department), and have a concomitant right to intervene in the case, see note 18, infra, we reverse the decision of the Worcester County Juvenile Court judge and remand that case for further action consistent with this opinion.
....
For the reasons set forth above, we conclude that, pursuant to G.L. c. 119, § 29, after a child is adjudicated a child in need of services, a parent is entitled to counsel at the dispositional phase of the proceeding if custody of the child could be granted to the department. We reverse the decision of the Worcester County Division of the Juvenile Court Department and remand the case for further proceedings consistent with this opinion.So ordered. "
For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.
New England Patriots' Randy Moss Hit With Restraining Order
This just in from Ned Holstein, of the Fathers and Families Blog, and as reported just several hours ago by various news sources in Florida: Randy Moss, our star wide receiver on the New England Patriots, has just been hit with a restraining order by a Florida woman: Fathers & Families Blog: New England Patriots’ Super Bowl Chances Imperiled by Restraining Order.
Ned Holstein, the tireless advocate for fathers' rights both here in Massachusetts and elsewhere, expresses an understandable skepticism regarding the claims, based on his knowledge that restraining orders are often fraudulently brought. Holstein recognizes that the allegations might be true as well, but puts the odds that they are true at 50-50. I wouldn't dare speculate without knowing the facts, which we can never expect to know just from the media's reports of what he said and what she said.
Certainly, as we might expect, Randy Moss himself has already proclaimed that these allegations are just an attempt at extortion, but then says he wishes no harm for his accuser, a woman whom he has known for 11 years.
"I don't wish anything bad on this woman. That's the love I have for her as a friend," he is quoted as saying in Canada's National Post. "Even though these allegations are false, or whatever she is claiming, I really can't be mad at that. If she's hurting and she needs money, that's on her."
But if this woman has really brought a false claim against him and is shaking him down for money, as he claims, why does he sound like he wants to placate her? Shouldn't he be really angry with her? I wonder.
Sports stars, like other celebrities, probably have more than the average temptations to stray and misbehave, but on the other hand, they are also much more likely to be victimized by greedy opportunists.
Maybe we will eventually know the truth about this. But more likely, as in many cases involving accusations of domestic violence, the case will be settled, dropped, or will otherwise "go away" and we will never get the real story. Only the two people involved will know.
See my law firm website for information about Massachusetts criminal law, and for the Massachusetts restraining order law. (Of course, where Randy Moss is concerned, it is Florida law, not Massachusetts law, that applies.)
Governor Patrick Makes First Good Move Toward CORI Reform
Governor Patrick has now decided what to do with CORI reform, as indicated in this press release issued yesterday by the Governor's office. He has filed legislation, which of course has to be acted upon, but has also implemented some changes through executive order. The best article I've seen on this so far is from the Worcester Telegram: CORI Reforms Bill Filed; Changes to Help Ex-Cons Get Jobs, Worcester Telegram & Gazette, by John J. Monahan, January 12, 2008.
The Boston Globe also published yesterday a column by Adrian Walker, who, while praising the Governor for this effort, pointed out both that on the one hand this is a rather timid reform, and on the other, that it may not even be passed by the legislature.
The Walker piece discussed Senator Dianne Wilkerson of Roxbury, who is one of those who believes the reform measure does not go far enough. "She has argued that juvenile records should be inaccessible but aren't," explains Walker. "She also maintained that the proposal does not go to the heart of the issue, which is that people with criminal records have trouble finding work and rebuilding their lives."
And then I think Senator Wilkerson hit the nail on the head when she said, as quoted in the editorial: "I think those people who have difficulty finding work because of CORI are not going to have much relief after the release of the governor's plan, and that to me is the most unfortunate part of it. The only real test is whether last year's no becomes this year's yes."
Although this CORI reform is welcome news, there are some things CORI reform advocates had hoped for, but which are not in the executive order and legislation. The Blue Mass Group Blog has a post and some good accompanying comments on some of the gripes of the reformers, a few of the biggies being that this reform will not clean up the records themselves - records which in many cases contain way too much information, and are inaccurate, inconsistent, and misleading - and also, as indicated by Senator Wilkerson, there is no change in the handling of juvenile records.
It seems the Governor took the cautious approach that the Worcester Telegram advocated some time ago, a cautious approach which I feared and which I spoke out against in this blog.
Too bad. This just means still more reform will be needed later on or else we will continue to live with absurd problems, including more, and unnecessary, government expenses for taxpayers, as we continue to create impossible dilemmas for those lowest on the economic ladder in this state.
Opponents of CORI reform should realize that this reform is about people who are already out of jail. We can't lock everybody up and punish them forever. They are out here. So now what do we want them to do? Enabling these people to get to work, get housing, and otherwise move on with their lives will reduce the rates of recidivism and welfare dependency.
But hats off, Governor Patrick, for having the courage at least to make this very good first step in the right direction. Let's hope our legislature has the decency, intelligence and courage to enact the legislation, and follow up with even stronger reforms later on.
For a good explanation of CORI, see CORI Project - Massachusetts Law Reform Institute, Inc., where you can find the "CORI Reader" - a very instructive article on CORI in a pdf file.
TELEGRAM ARTICLE EXCERPT:
"BOSTON— Gov. Deval L. Patrick filed legislation yesterday that would reduce the time the public could view most criminal records — from 15 years to 10 years for felonies and from 10 years to 5 years for misdemeanors — to make it easier for past offenders to get jobs and to reduce prison recidivism.
The changes are among numerous proposed reforms to the state’s Criminal Offender Record Information law laid out by the governor after a year of study.
'CORI was never intended to turn every offense into a life sentence,' the governor said in a statement announcing the initiative. 'All but a handful of people incarcerated are eventually released, and they need to get back to work.'
While the change in the length of time before records are sealed and some other changes would require legislative approval, several changes were implemented by the governor by executive order yesterday.
The legislation also would increase access to sealed criminal records for police and criminal justice agencies, granting them access to all criminal records sealed by the courts, and would impose a new penalty of $5,000 or one year in prison for those convicted of making unauthorized requests, unauthorized use or dissemination of CORI records.
Handling of juvenile records would not change under the legislation.
Meanwhile, the governor directed state agencies to implement several other changes in the handling of criminal records...."
For information and links related to Massachusetts criminal law see the criminal defense page of my law firm website.
Access to Justice Commission Proposes Role for Non-Lawyers as Advocates in Court
This just in from the Massachusetts Lawyers Weekly, concerning a well-intentioned, but not so well-reasoned or articulated, proposal for permitting the use of non-lawyers as advocates in certain civil cases, including domestic violence/restraining order cases: 'Access' panel favors use of non-lawyers in some civil cases ('Access' panel favors use of non-lawyers in some civil cases; Bar leaders voice skepticism) By Barbara Rabinovitz, Massachusetts Lawyers Weekly, October 30, 2007
There are a number of good points made in the report, but I think many of the actual proposals are either not clearly articulated, or otherwise are unworkable or unwise. But read the report and decide for yourself. The full report of the Access to Justice Commission is available on the Boston Bar Association's website: http://www.bostonbar.org/prs/nr_0708/accesstojustice101607.pdf
"A statewide commission that has been examining barriers to access to justice in Massachusetts has recommended that trained non-lawyers be allowed to speak in court on behalf of low-income parties embroiled in certain civil matters — a recommendation that has ignited renewed debate over the use of lay advocates.
The 21-member commission, chaired by former Supreme Judicial Court Chief Justice Herbert P. Wilkins, spent much of 2006 and this year conducting public hearings in Boston, New Bedford, Lawrence and Springfield and compiling a 47-page report for submission to the SJC.
The panel was charged by the court with suggesting ways for making legal assistance more readily available to poor people caught up in civil cases involving such issues as evictions and domestic violence. High on the panel's list of suggestions is permission for the use of non-lawyers in some court settings ....
Wilkins told Lawyers Weekly that the proposal dealing with non-lawyers is 'not talking about a general permission' for them. 'We're talking where a person is indigent, and no lawyer will take the matter.' ....
But Boston Bar Association President Anthony M. Doniger voiced reservations. 'The fundamental issue is that one of the great virtues of having lawyers do things is that lawyers are a regulated profession and there are standards they have to follow,' he said. 'As soon as you're talking non-lawyers, it's not at all clear what the quality control will be, what the training will be, who's in charge'.... "
There are a number of good points made in the report, but I think many of the actual proposals are either not clearly articulated, or otherwise are unworkable or unwise. But read the report and decide for yourself. The full report of the Access to Justice Commission is available on the Boston Bar Association's website: http://www.bostonbar.org/prs/nr_0708/accesstojustice101607.pdf
"A statewide commission that has been examining barriers to access to justice in Massachusetts has recommended that trained non-lawyers be allowed to speak in court on behalf of low-income parties embroiled in certain civil matters — a recommendation that has ignited renewed debate over the use of lay advocates.
The 21-member commission, chaired by former Supreme Judicial Court Chief Justice Herbert P. Wilkins, spent much of 2006 and this year conducting public hearings in Boston, New Bedford, Lawrence and Springfield and compiling a 47-page report for submission to the SJC.
The panel was charged by the court with suggesting ways for making legal assistance more readily available to poor people caught up in civil cases involving such issues as evictions and domestic violence. High on the panel's list of suggestions is permission for the use of non-lawyers in some court settings ....
Wilkins told Lawyers Weekly that the proposal dealing with non-lawyers is 'not talking about a general permission' for them. 'We're talking where a person is indigent, and no lawyer will take the matter.' ....
But Boston Bar Association President Anthony M. Doniger voiced reservations. 'The fundamental issue is that one of the great virtues of having lawyers do things is that lawyers are a regulated profession and there are standards they have to follow,' he said. 'As soon as you're talking non-lawyers, it's not at all clear what the quality control will be, what the training will be, who's in charge'.... "
Reported Domestic Assaults Are Up in Worcester This Year
The Worcester Telegram informs us that reported domestic assaults are up this year in Worcester. LINK to Worcester Telegram Article By Scott J. Croteau TELEGRAM & GAZETTE STAFF, Tuesday, October 30, 2007: Domestic assault numbers rising
"WORCESTER— Reports of domestic assaults in the city are up this year, an increase police officials say shows the need for a continued working partnership with a battered women’s advocacy agency. Police Chief Gary J. Gemme and Ginger L. Navickas, director of the YMCA of Central Massachusetts’s Daybreak program, said resources are in place to help victims of domestic violence and continue increasing awareness of the problem in the community. Crime statistics for Jan. 1 to Sept. 30 show 279 domestic aggravated assaults have been reported, which is a 24.6 percent increase over last year. There were 224 reported in 2006. The number is also 13.4 percent higher than the seven-year average.
The statistics also show simple domestic assaults increased by 20 percent so far this year, compared to last year. There have been 861 simple domestic assaults reported compared to 717 last year. This year’s number is well above — or 29.5 percent — over the seven-year average of 665.... "
"WORCESTER— Reports of domestic assaults in the city are up this year, an increase police officials say shows the need for a continued working partnership with a battered women’s advocacy agency. Police Chief Gary J. Gemme and Ginger L. Navickas, director of the YMCA of Central Massachusetts’s Daybreak program, said resources are in place to help victims of domestic violence and continue increasing awareness of the problem in the community. Crime statistics for Jan. 1 to Sept. 30 show 279 domestic aggravated assaults have been reported, which is a 24.6 percent increase over last year. There were 224 reported in 2006. The number is also 13.4 percent higher than the seven-year average.
The statistics also show simple domestic assaults increased by 20 percent so far this year, compared to last year. There have been 861 simple domestic assaults reported compared to 717 last year. This year’s number is well above — or 29.5 percent — over the seven-year average of 665.... "
Note: One little correction to the Telegram article: it is of course the YWCA, not the YMCA, where the Daybreak Program is housed.
No Longer Mere Chattel: The Rising Status of Pets in Family Law
I am surprised it hadn't happened before, but I'm certainly not surprised that it now appears to have finally happened in California: as reported a few days ago by California lawyer John Harding in his post California Divorce Blawg: Power To The Pets, Arnold Schwarzenegger recently signed into law, on September 11, 2007, a California statute that gives pets a status somewhat similar to that of human beings in some cases, by specifically providing for their inclusion in protection orders, authorizing orders providing for their exclusive care by one party and prohibiting any abuse of the animals themselves. Here in New England, Maine last year became the first state in the nation to provide for the inclusion of pets in restraining orders. At least a few other states, including New York, Vermont and Connecticut, have similar new laws pending or recently enacted. Connecticut's new law just went into effect on October 1.
The California Divorce Blawg posted a link to the new California law, at http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_0351-0400/sb_353_bill_20070911_chaptered.html and there is some pretty interesting information here on the legislative history of this bill, including reference to recent studies supposedly showing a correlation between domestic violence (concerning human beings) and the abuse of animals.
In my cases in Massachusetts I have been a part of wide-ranging disputes over pets. Sometimes judges have made temporary orders regarding pets in family court proceedings, and even in restraining orders, despite the lack of any such law to guide them. Most judges, however, have been reluctant to deviate from the historic common law treatment of animals/pets as chattel, and so the fate of pets is often not determined in divorce cases until the marital property division occurs, often at the very end of the process, at settlement or trial.
It shouldn't be long before animal lovers in other states prod their legislatures to follow the lead of Maine, Vermont, Connecticut, New York and California.
The California Divorce Blawg posted a link to the new California law, at http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_0351-0400/sb_353_bill_20070911_chaptered.html and there is some pretty interesting information here on the legislative history of this bill, including reference to recent studies supposedly showing a correlation between domestic violence (concerning human beings) and the abuse of animals.
In my cases in Massachusetts I have been a part of wide-ranging disputes over pets. Sometimes judges have made temporary orders regarding pets in family court proceedings, and even in restraining orders, despite the lack of any such law to guide them. Most judges, however, have been reluctant to deviate from the historic common law treatment of animals/pets as chattel, and so the fate of pets is often not determined in divorce cases until the marital property division occurs, often at the very end of the process, at settlement or trial.
It shouldn't be long before animal lovers in other states prod their legislatures to follow the lead of Maine, Vermont, Connecticut, New York and California.
CORI Reform Urged By Worcester Telegram, But Caution Urged
LINK to Worcester Telegram Editorial: CORI reform
Tuesday, October 23, 2007 "CORI reform: Fix it, but not at the expense of public safety"
"Gov. Deval L. Patrick has called upon the Legislature to reform the state’s Criminal Offender Record Information Act this year. Any changes should be approached with caution. Mr. Patrick has not filed new legislation. Instead, he is urging lawmakers to work out a compromise from among the 30 or so CORI bills already filed. Many of the proposals stem from a campaign by advocates and former offenders who argue that the 35-year-old CORI is an impediment to rehabilitation. Many employers refuse to hire anyone with a criminal record, they say, even if it includes not-guilty findings and dismissals....."
The Worcester Telegram gets it almost right here, except that they wrongly state that CORI is already all public information (it is not), and they are too apparently eager to err on the side of "caution." We need CORI reform, both for the sake of reformed criminal offenders who need to work so as not to return to crime, and for the sake of those with restraining orders on their record, many of which were brought by ex-partners in divorce or other domestic disputes, and many of which were both fraudulently brought, just to get them out of the home and/or to gain an advantage in their divorce case, and too easily obtained, whether or not there was any real abuse. Employers should not have such easy access to this information, which can lead to other kinds of problems even if it doesn't always prevent candidates for jobs from being unfairly disqualified. And of course this information certainly does lead candidates to be unfairly, and foolishly, disqualified for jobs, jobs that can be used to keep them out of the criminal and welfare systems, and that can be used to pay for things like child support.
Past criminal offenders should be allowed to work again so that they don't slip back into a life of crime. Also those who have been accused of domestic abuse should be allowed to work again, and should not be prejudiced by the disclosure of the information on their CORI. Many of those with restraining orders on their record have indeed been guilty of domestic abuse, but most have changed and have had these restraining orders vacated. Many others never committed any abuse in the first place, but were themselves the victims of partners who manipulated the court system. The Telegram urges caution in CORI reform. Ironically, the judges are cautious in another sense. The judges in the district courts and family courts regularly err on the side of caution and issue restraining orders to many who have not truly reached the legal standard that is supposed to be required, lest their wonderful judicial names appear in the Telegram or other media along with the unsavory news that they refused to issue a restraining order and something bad happened (like a real abuser actually hurt a real victim).
And if these defendants, when they land in court to answer to these requests for restraining orders against them, happen to be too poor to hire a lawyer, they are not given a court-appointed lawyer, to protect them from having their children taken away and from being thrown out of their home. They will, however, be assigned a court-appointed lawyer to help them with the simple assault charge just brought against them, even though that assault charge is very unlikely actually to lead to any jail sentence or make them suffer any great punishment. (Gideon's Trumpet doesn't sound loudly enough for these folks. A lawyer is constitutionally required for indigents facing the mere possibility of temporary jail time for a crime, but not, at least according to the current prevailing opinion, for indigents facing the immediate temporary loss of their home and their children in a restraining order case.) Furthermore, even if the restraining order is very soon vacated, and indeed even if it is done so at the request of the complaining witness, the record of the issuance of this restraining order will stay on their criminal record to haunt them.
CORI reform is long overdue. Judges will always be cautious and will give out restraining orders even when these judges are not really convinced there is an imminent threat of serious bodily harm, or other abuse, as defined by the M.G.L. Ch. 209A statute (restraining order law). But we should be at least as cautious (and here I do not mean in the judicially cowardly way, but in the practical, reasonable way) in giving away this information so freely to employers, and in making more and more of such information public, regardless of the consequences.
Tuesday, October 23, 2007 "CORI reform: Fix it, but not at the expense of public safety"
"Gov. Deval L. Patrick has called upon the Legislature to reform the state’s Criminal Offender Record Information Act this year. Any changes should be approached with caution. Mr. Patrick has not filed new legislation. Instead, he is urging lawmakers to work out a compromise from among the 30 or so CORI bills already filed. Many of the proposals stem from a campaign by advocates and former offenders who argue that the 35-year-old CORI is an impediment to rehabilitation. Many employers refuse to hire anyone with a criminal record, they say, even if it includes not-guilty findings and dismissals....."
The Worcester Telegram gets it almost right here, except that they wrongly state that CORI is already all public information (it is not), and they are too apparently eager to err on the side of "caution." We need CORI reform, both for the sake of reformed criminal offenders who need to work so as not to return to crime, and for the sake of those with restraining orders on their record, many of which were brought by ex-partners in divorce or other domestic disputes, and many of which were both fraudulently brought, just to get them out of the home and/or to gain an advantage in their divorce case, and too easily obtained, whether or not there was any real abuse. Employers should not have such easy access to this information, which can lead to other kinds of problems even if it doesn't always prevent candidates for jobs from being unfairly disqualified. And of course this information certainly does lead candidates to be unfairly, and foolishly, disqualified for jobs, jobs that can be used to keep them out of the criminal and welfare systems, and that can be used to pay for things like child support.
Past criminal offenders should be allowed to work again so that they don't slip back into a life of crime. Also those who have been accused of domestic abuse should be allowed to work again, and should not be prejudiced by the disclosure of the information on their CORI. Many of those with restraining orders on their record have indeed been guilty of domestic abuse, but most have changed and have had these restraining orders vacated. Many others never committed any abuse in the first place, but were themselves the victims of partners who manipulated the court system. The Telegram urges caution in CORI reform. Ironically, the judges are cautious in another sense. The judges in the district courts and family courts regularly err on the side of caution and issue restraining orders to many who have not truly reached the legal standard that is supposed to be required, lest their wonderful judicial names appear in the Telegram or other media along with the unsavory news that they refused to issue a restraining order and something bad happened (like a real abuser actually hurt a real victim).
And if these defendants, when they land in court to answer to these requests for restraining orders against them, happen to be too poor to hire a lawyer, they are not given a court-appointed lawyer, to protect them from having their children taken away and from being thrown out of their home. They will, however, be assigned a court-appointed lawyer to help them with the simple assault charge just brought against them, even though that assault charge is very unlikely actually to lead to any jail sentence or make them suffer any great punishment. (Gideon's Trumpet doesn't sound loudly enough for these folks. A lawyer is constitutionally required for indigents facing the mere possibility of temporary jail time for a crime, but not, at least according to the current prevailing opinion, for indigents facing the immediate temporary loss of their home and their children in a restraining order case.) Furthermore, even if the restraining order is very soon vacated, and indeed even if it is done so at the request of the complaining witness, the record of the issuance of this restraining order will stay on their criminal record to haunt them.
CORI reform is long overdue. Judges will always be cautious and will give out restraining orders even when these judges are not really convinced there is an imminent threat of serious bodily harm, or other abuse, as defined by the M.G.L. Ch. 209A statute (restraining order law). But we should be at least as cautious (and here I do not mean in the judicially cowardly way, but in the practical, reasonable way) in giving away this information so freely to employers, and in making more and more of such information public, regardless of the consequences.
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