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Home Summary Index 209A
 

  NISSENBAUM’S STANDARD SET OF

  SUMMARIES OF LAW

209A Soup to Nuts

 

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1.0 General Underlying Principals

  • Violence among family or household members is the social ill for which G. L. c. 209A attempts a remedy Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 ( 2003). Turner v. Lewis, 434 Mass. 331, 334 (2001).

  • The statute was enacted "to address the problem of domestic violence through the provision of judicial remedies," Turner v. Lewis, 434 Mass. 331, 332 (2001), and the "c. 209A proceeding is a civil, and not a criminal, proceeding." Frizado v. Frizado, 420 Mass. 592, 596 n.3 (1995).

  • The "[v]iolence brought on by, or exacerbated by, familial relationships was the 'mischief or imperfection to be remedied' by c. 209A." Turner v. Lewis, supra at 334, quoting from Adoption of Derrick, 415 Mass. 439, 444 (1993).

  • "The statute attempts to balance sensitive issues, and often brutal aspects, of fundamental human relationships." Jones v. Gallagher, 54 Mass. App. Ct. 883 (2002).

  • G. L. c. 209A is a "statutory mechanism by which victims of family or household abuse can enlist the aid of the State to prevent further abuse." Commonwealth v. Contach, 47 Mass. App. Ct. 247, 253 (1999), quoting from Commonwealth v. Gordon, 407 Mass. 340, 344 (1990), cited with approval in Jones v. Gallagher, 54 Mass. App. Ct. 883 (2002).

  • Administration of the potent remedies of G. L. c. 209A requires great sensitivity for the suffering and, sometimes, the mortal danger that flow from domestic violence. Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 ( 2003). See Commonwealth v. Contach, 47 Mass. App. Ct. 247, 253 (1999); Jones v. Gallagher, 54 Mass. App. Ct. at 887-889.

  • Judges have been instructed to be especially sensitive, and to examine such cases with restraint and compassion, see Commonwealth v. Contach, 47 Mass. App. Ct. at 247, "in the context of the entire history of the parties' hostile relationship." Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999).

  • C. 209A aims to prevent physical harm. Cf. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 591-592 (1981) (it is not the quality of parental conduct that justifies State action but the fact of endangerment to the child). Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 (2003).

  • "The [complaining parties] are under considerable stress because by the very nature of the process they are required to reveal to strangers details of intimate relationships that have disintegrated into violence and, indeed, even hatred." Commonwealth v. Contach, 47 Mass. App. Ct. 247, 253 (1999).

  • Consequences of the underlying situation, notwithstanding any order, tragically and too frequently include the most serious violence and sometimes death of the complainant. See Commonwealth v. Johnson, 429 Mass. 745, 746 (1999) (defendant convicted of first-degree murder and violating abuse prevention order under G. L. c. 209A, 7); Commonwealth v. Bianchi, 435 Mass. 316, 317 (2001) (same).

  • In deciding whether to issue, modify or renew an abuse prevention order, a judge's discretion is "broad." Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002). Crenshaw v. Macklin, 430 Mass. 633, 635 (2000). See Kindregan & Inker, Family Law and Practice � 57.7 (2d ed. 1996).

  • Judge’s broad statutory authority is based on "the Commonwealth's public policy against domestic abuse -- preservation of the fundamental human right to be protected from the devastating impact of family violence." Champagne v. Champagne, 429 Mass. 324, 327 (1999). Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002).

  • With good reason, c. 209A has teeth, including: bail review consequences (see G. L. c. 276, � 57, as amended by St. 1992, c. 201, � 2); entry on a State record of abusers (St. 1992, c. 188, 7); criminal record for violation of a c. 209A order; and deportation (see Commonwealth v. Villalobos, 437 Mass. 797, 798 [2002]). Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 (2003).

  • For those reasons, among others, a court "should not issue a G. L. c. 209A order simply because it seems to be a good idea or because [it seems] it will not cause the defendant any real inconvenience." Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 ( 2003). Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995); Jones v. Gallagher, 54 Mass. App. Ct. 883 (2002).

  • "A c. 209A order will infallibly cause inconvenience. In considering whether to [initially] issue a c. 209A order, the judge must focus on whether serious physical harm is imminent. Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995). Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998). Carroll v. Kartell, 56 Mass. App. Ct. 83, 87 (2002)." Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 ( 2003).

  • "Generalized apprehension does not rise to the level of fear of imminent serious physical harm. Carroll v. Kartell, 56 Mass. App. Ct. 83, 86-87 (2002). In considering an application for a c. 209A order, a judge must be alert against allowing the process to be used, as it sometimes is, "abusively by litigants for purposes of discovery and harassment." Jones v. Gallagher, 54 Mass. App. Ct. 883, 887 n.4. (2002)" Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 ( 2003).

  • A c. 209 A order may make other family circumstances (especially involving the parties' children) and relationships substantially more complicated. See Commonwealth v. Silva, 726 N.E.2d 408  (2000); Fabre v. Walton, 436 Mass. 517, 519 (2002); Wooldridge v. Hickey, 45 Mass. App. Ct. at 637; Commonwealth v. Leger, 52 Mass. App. Ct. 232, 235 (2001); Commonwealth v. Stewart, 52 Mass. App. Ct. 755, 762 (2001); Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).

  • C. 209 A aims to prevent physical harm. Cf. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 591-592 (1981) (it is not the quality of parental conduct that justifies State action but the fact of endangerment to the child).

  • The Legislature intended that domestic abuse prevention order proceedings be as expeditious (i.e. brief) and informal as reasonably possible. Zullo v. Goguen, 423 Mass. 679, 681 (1996).

  • "The Legislature intended the c. 209A judicial process to be as "expeditious and as comfortable as it reasonably can be for a lay person to pursue." Frizado v. Frizado, 420 Mass. at 598 cited with approval in Jones v. Gallagher, 54 Mass. App. Ct. 883 (2002).

  • It has been recognized that trial judges can be sensitive to the difficulties of pro se litigants, and although some leniency is appropriate in determining whether a pro se litigant meets the requirements of procedural rules, the rules bind pro se litigants as they bind other litigants. Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985); Mains v. Commonwealth, 433 Mass. 30, 35 (2000); Jones v. Gallagher, 54 Mass. App. Ct. 883 (2002).

  •