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Restraining orders abused in many child custody cases
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Worchester Telegram and Gazette
By RINALDO DEL GALLO, III
Wednesday, December 10, 2008
Restraining orders abused in many child custody cases
Recently, at an event sponsored by the Worcester Bar Association, Chief Justice Margaret Marshall stated that too often "victims" of domestic violence do not have access to legal representation.
Judge Marshall's choice of the term "victim" is unfortunate because it presupposes the guilt of the accused before trial. Far too many restraining orders are being issued in Massachusetts.
Judges need to be far more educated and realistic in motives for making false allegations. A restraining order is of incalculable value in custody cases, represents a quick and easy vacate order and is an easy way to exact revenge.
Moreover, under the Violence Against Women Act, a restraining order can be a ticket to a visa for a foreign national, even one who is in the country illegally and has been working illegally.
I have seen a Boston judge - quite moronically if you reflect on the matter - express her view that it was absurd to believe that a woman that was illegally in the country would lie about domestic violence in order to obtain a VAWA visa. A woman who is an illegal immigrant might have floated across an ocean in a raft but, according to that judge, lying in court to secure her right to remain in the country was a far-fetched theory.
I have seen in numerous cases seemingly brain-dead judges expressing bewilderment as to the relevance of some serious parental shortcoming of a mother who was on the precipice of losing custody of her children in family court. My clients have stood next to me with dropped-jaw amazement that the judge could not figure out the obvious relevance VAWA regarding motive to fabricate. The judge's tone and voice often express extreme irritation when one broaches the subject of the motive to lie, many times literally yelling to "get on to the substantive issues."
Much more also needs to be made by judges of evidence that the alleged victim is not afraid of the so-called perpetrator. In the Boston case, numerous witnesses testified that a putatively "terrified victim" trapped my client in a car in a driveway, reached in the driver's side window and punched him repeatedly in the testicles. Amazingly, the judge wrote that such nondefensive but extremely violent conduct was common among victims of violence.
On other occasions, this woman that was in "fear of imminent serious physical injury" did not even bother to show up to court after filing a restraining-order complaint.
Judges need to stop handing out restraining orders simply because there has been tension among the parties, or one party has yelled at the other party, or because in the distant past a party was violent.
The law is clear - the act triggering a restraining order is supposed to be something very close to an assault perpetrated by one party against the other, not generalized tension between the parties or an expression of anger.
In one case in North Adams, a woman claimed that my client called her and threatened to kill her. No doubt, the woman did not know that local phone records exist. When I subpoenaed these phone records and proved to a 100 percent certainty that she completely fabricated the incident and clearly committed perjury as well as committed the crime of filing a false police report, the judge still issued the restraining order based upon tension between the parties and my client's previous criminal record. My client suffered a mental collapse as a result.
In another case, a woman claimed my client left threatening messages on her answering machine. She had not allowed my client to see his own son in weeks and my client was understandably distraught.
I asked her to play the messages. My client was angry and loud (short of yelling) - but he never threatened her with violence and, to the contrary, was threatening to contact the authorities. Despite nothing approaching a threat of force being used or implied in his behavior, the restraining order was issued because of "tensions."
By far, the biggest problem is the incessant issuance of restraining orders without sufficient evidence. On a daily basis in courts throughout Massachusetts, a woman will claim to be the victim of a threat without any remotely credible corroborating evidence. The majority of restraining orders are issued in this manner.
Even when the accused has little or no criminal record, the woman is automatically believed, the man is thrown out of his house, his children are taken from him, he is labeled an abuser, and his right to possess a gun (often a professional requirement) is taken from him.
Rinaldo Del Gallo III, a family law attorney, is the spokesman of the Berkshire Fatherhood Coalition.
Originally published: http://www.telegram.com/article/20081210/NEWS/812100354
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Here were comments:
Your town is not the only one with a justice system out of control.Mobile Al gives a whole new meaning to crooked lawyers and judges who don't care as long as they stay on the bench and the way to do that is to take the women's side plus it makes money for the court system.If I knew then what I know now I would tell my son's not to marry or have children.
-injustice
[report abuse]
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Atty. DelGallo is right on the money. Past president of the MA bar assoc., Elaine Epstein, once wrote in the newsletter, 'Everyone knows that restraining orders and orders to vacate are granted to virtually all who apply. In many cases, allegations of abuse are now used for tactical advantage.'
Rather than a protection from violence, restraining orders are an entitlement for women seeking an advantage in divorce and custody cases. All she needs to say is that she's 'in fear'. No evidence, no corroborating testimony. Just her word against his. It's called 'the poor womans' divorce: she gets him out, she gets the house, the kids, and an order for support. And there's no defense. How can a man prove she's NOT in fear?
The abuses of the system are rampant. One man got two years in jail for trying to find out about his hospitalized 3 yr. old. Another was jailed because his ex found a fathers rights book in the gutter, and 'knew' he left it there as a threat. Then there's the guy who was jailed for sending a Christmas card to his daughter.
Quite an entitlement,but it only works for women. In our feminized courts, overseen by lesbian judges, very few men are able to secure RO's against an abusive woman. MA courts are currently issuing 55,000 RO's a year, almost exclusively against men. That reeks of discrimination. In truth, as many men are abused as women, but in MA courts, they are not entitled to the same protections. Shameful!
-PCLEMSC
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Attorney Del Gallo has got this story right on the money. Judges appear to throw legal reasoning and evidence out the window when it comes to restraining orders against men. There is practically a presumption of guilt made upon the man with little or no more evidence from the woman other than an affidavit indicating 'she was in imminent fear of her safety.' Certainly there is no corroborating evidence needed.
Without question, restraining orders have there appropriate place to protect those that need protection from the horrible consequences of domestic abuse.
Unfortunately this position over years of court decisions has been corrupted and misdirected from abusive tactics by those attempting to leverage restraining orders to their advantage.
-A Father
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HERE WAS A PUBLISHED LETTER TO THE EDITOR:
| Wednesday, December 24, 2008 |
As Rinaldo Del Gallo III stated in his As I See It (“Restraining orders abused in many child custody cases,” Telegram & Gazette, Dec. 10), “far too many restraining orders are being issued in Massachusetts.” I wholeheartedly agree; any restraining order needed to protect a survivor of domestic violence from further assault or harm is one restraining order too many. No person should have to go in front of a judge and ask for a special order to help assure their safety. It is the right of all to be safe from abuse.
Deaths related to domestic violence have risen by 300 percent since 2005, as reported by the Department of Public Health. During this same period, the number of restraining orders has fallen. Mr. Del Gallo illustrated the attitude and actions of those who try to keep abuse survivors from seeking legal protection by calling the judges who support them “moronic” and “brain-dead.” Beyond the fear of how they would be treated in court by a lawyer like Mr. Del Gallo, the fear of being further harmed or threatened for filing a restraining order keeps many survivors away.
There is no doubt that false allegations of abuse are harmful to parents and children. There is also no doubt that far too few survivors come forward to seek protection from abuse. Comparing the number of restraining orders with individual struggles in custody cases creates a false dichotomy that does nothing but support those abusers who seek further ways to hurt their partners.
KEVIN GALIPEAU
Vice President of Operations
New Hope Inc.
Worcester
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