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North Adams Transcript (MA)

January 4, 2005
Section: Columnists
Article ID: 2634063

The other side of retraining orders

Rinaldo Del Gallo III

2. WORK OR SCHOOL PROBLEMS. There is usually a distance from the person/home/school/work requirement with a restraining order. If you live near work or school, or are classmates/co-workers, you may have to quit your school or job. If you work in law enforcement, armed security, the military, child care, or other areas sensitive to domestic violence, you also may be forced to quit. Gun permits will be suspended.

3. LEGAL RECOURSE: It is perjury to make a false statement to get a restraining order. However, the Berkshire district attorney will almost never prosecute an individual for committing perjury. As for civil lawsuits, under the new anti-SLAPP statute, unless you can prove to a certainty that the underlying representation is lie, not only will your case be dismissed without a trial by your peers, you will be forced to pay for her attorney fees. The anti-SLAPP statute will not apply in federal court cases.

4. FUTHER LEGAL DIFFICULTIES: When a restraining order issues, you stand the grave danger of accidental contact. This accidental contact may occur attempting to contact your children, or simply milling about town. This is the beginning of the nightmare. The DA's office pursues criminal charges for violation of a restraining order with tremendous frequency. Your one advantage is that you have the right to trial by jury -- the DA's office often loses these types of cases.

5. LITIGATION ADVANTAGE: Restraining orders are formidable litigation tools. They instantly put a wife/girlfriend in possession of disputed personal property and real estate. Males are seldom awarded them, even with similar alleged circumstances (Steven Basile study). In child custody battles, the effect is especially devastating. While Massachusetts courts are largely biased against men (McNabb study), they claim they are gender neutral by supposedly giving great weight to the "primary caregiver," not the gender of the parent. A restraining order instantly adds "primary caretaker" status to the mother, even when the father was as active, or even much more active, in the child rearing.

Child visitation is usually greatly curtailed, and often it must be supervised, even when there are no allegations of abuse against the children. Often, visitation occurs in battered women shelters, where you are psycho-evaluated during your visits by a person that often has anti-male hostilities, and who will report to the court. We advise if there must be supervised visitation, pursue relatives or places like the YMCA. Even though the odds are long, whenever custody of children is an issue, a restraining order must be fought with the utmost vigor. To lose the restraining order hearing is usually tantamount to losing the entire case.

6. STANDARD FOR ISSUANCE: While you have a right to a jury trial if you are alleged to violate a restraining order, you have no right to a jury trial regarding restraining order issuance. The standard for review, in almost all cases, is a very lenient one. Judges believe that restraining orders do a great deal of good as people willing to visit serious physical violence are wont to abide by them, while doing relatively little harm to the subject of the restraining order. Domestic violence professionals frequently advise and train judges that false allegations of abuse are extremely rare, and that denials of abuse should be met with enormous skepticism.

Rinaldo Del Gallo III is spokesman of the Berkshire Fatherhood Coalition and a practicing family court attorney.