Family Law and COVID-19

While COVID-19 has impacted families everywhere, it has had a particularly devastating effect on families living in two separate households.  In some cases, COVID-9 has exacerbated tensions that existed prior to the public health crisis. In other cases, parents who have traditionally made child-related decisions together can no longer do so.  Our office has received many questions from parents asking about what their legal rights and responsibilities are to the other parent while also ensuring that their children remain as safe as possible. 

The probate and family courts, which adjudicated these disputes in the past, are only open for emergencies.  Beyond restraining orders, however, it is unclear what constitutes an emergency. Is it an emergency when one parent will not allow the other parent to see the child because of COVID-19?  Is it an emergency when one parent is not paying child support to the other? What if someone is laid off from work? Even for families living in the same household, parents frequently differ on appropriate precautionary measures, such as what constitutes social isolation, whether to order food delivered, and how frequently to go grocery shopping. Imagine these disputes when families are in different households and under significant stress.  

While what constitutes an emergency may be nebulous, what is clear is that parents, to the extent that they can, should follow existing parenting plans.  For a parent concerned about the other parent potentially exposing the child to COVID-19, keep in mind that any decisions made around parenting time during the crisis will be reviewed by the court. The court will want to see that a parent acted reasonably: contacting a doctor for an expert opinion, ensuring that the parent who is not seeing the child will have significant time over Facetime, Zoom, or another social media platform, and arranging for “make up” time when COVID-19 ends.  To the extent possible, parents should also continue to pay child support and, if laid off, they should file a modification as soon as possible. In short, parents must make parenting decisions based on what is in the child’s best interest.  

The good news is that some parties, who were unwilling to compromise, have found that an agreement that only gives them some of what they want may still be better than waiting for an uncertain court date.  Lawyers are actively working together to submit proposals to the court in order to move cases along so people can get the relief they need. It is our hope that this spirit of cooperation between parties and lawyers in acrimonious cases will result in better outcomes for our clients. 

If you are looking for counsel for a family law issue, contact us today to arrange a free consultation with Attorney Biscardi!


Update: Getting People Out of Jail During the Covid-19 Pandemic

In our blog post on Monday, March 30, 2020, we discussed some of the efforts that lawyers have been making to get people out of jail because of the COVID-19 pandemic. Since then, things have changed. 

On March 21, 2020, the first case of COVID-19 at a Massachusetts correctional facility was diagnosed.  As of April 4, 2020, three inmates have died due to the pandemic. Correctional facilities have also identified four prisons and six jails where COVID-19 has been diagnosed  with twenty-four confirmed COVID-19 diagnoses. Fifteen DOC staff were also confirmed to have the virus. The crisis facing our jails and prisons is ramping up. 

Meanwhile, the Supreme Judicial Court (SJC) issued decisions in two cases addressing decarceration, CPCS & MACDL v. The Chief Justice of the Trial Courts and Christie v. Commonwealth. These two cases issued specific instructions and set the tone for how the justice system will deal with Covid-19 in the days and weeks to come. 

CPCS & MACDL v. The Chief Justice of the Trial Courts

The Issue:

The Committee for Public Counsel Services and the Massachusetts College of Defense Lawyers asked the Court to order the release of large groups of inmates in order to prevent widespread death and illness from Covid-19.  They also advocated for other measures to help prevent new people from entering the jails, such as vacating outstanding warrants. The Court joined every District Attorney and every Sheriff in the Commonwealth as defendants in the case, creating a system-wide showdown between those advocating for the release of inmates and those looking to keep them locked up. 

The Bottom Line – Who Is Getting Released: 

Certain people who are held pending trial and people held pending a final probation violation hearing are entitled to an expedited hearing and a presumption that they will be released on their own recognizance. People who are held without bail because of dangerousness or charged with an “excludable offense” are not entitled to this process.  Each county is ordered to set up a special Covid-19 session with a dedicated judge and two back-up judges to process these releases as quickly as possible. 

The Good: 

  • The Court created a mechanism by which it clearly intends for a large number of prisoners to be released in short order.  
  • The Court also emphasized that this is what they are willing to do right now and put a plan in place to monitor what happens from here on out, including getting regular reports from the infamously opaque county sheriffs. They made it clear that things are changing, and nothing is final. 
  • They acknowledged that, while the defense bar did not claim prisoners’ constitutional rights were being violated, such a claim could arise in the near future. 
  • They explicitly stated that the risk of Covid-19 is something to be considered by any judge who is considering putting or keeping a person in custody and by the parole board. 
  • They made it clear that their ruling in no way prevented individual prisoners from seeking their release, regardless of whether or not they fall into the presumptive release category. 
  • They explicitly did not rule on any constitutional issues, leaving the door open for future claims of cruel and unusual punishment and due process violations. 

The Bad: 

  • The ruling requires people  to file individual motions requesting that they be released, and allows the Commonwealth to oppose those motions.   The process of filing these motions will slow releases down considerably thereby increasing the number of people who get COVID-19. 
  • The category of “excludable offenses” is incredibly broad and encompasses the offenses on which judges are most likely to set high bails. This, along with the requirement that individual motions must be filed, make it quite possible that this solution will be entirely inadequate to address the problem of COVID-19 transmission in the jails.
  • Other than ordering the parole board to pick up its pace and consider the implications of Covid-19, the Court did nothing to secure the release of inmates serving sentences or provide special measures for the release of particularly vulnerable inmates. This is particularly relevant because state prisons run by the Department of Corrections are on average more crowded than county jails. 
  • None of the requested relief intended to keep new people from going to jail (vacating warrants, suspending conditions of probation) was granted. 
  • The Court expressed a robust respect for the authority of the executive branch (the folks working to keep people locked up) and was emphatic about being unwilling to exceed the scope of their own authority. This means, among other things, that they do not believe they can expand the scope of judicial authority to consider motions to revise and revoke sentences or the time limits imposed on those motions. It also means that the SJC  will be reluctant to dictate how the cases of people serving sentences are handled, short of allegations of constitutional violations, because punishment is the executive branch’s territory.  

What’s Next:

Enforcement – To paraphrase Andrew Jackson, the SJC has made their decision, now let’s see them enforce it! On April 6th, the superior, district, juvenile, and Boston municipal courts all issued standing orders to implement the Supreme Judicial Court’s decision. These orders lay out the procedure for the presumptive releases cases as ordered by the SJC, as well as how other requests for release will be handled. The processes laid out by the courts have some significant potential failure points. 

First and most notably, it would be extremely difficult to file one of these motions for release without counsel. Every single one of these procedures assumes the incarcerated person will have a defense attorney who is working diligently to get them released. That is a huge assumption.  The district court procedure requires that defense counsel certify that they have conferenced the case with an assistant district attorney. As anyone who has ever tried to get an ADA on the phone knows, that is potentially a pretty big roadblock. The district court procedure also requires a level of communication between counsel and client before filing the motion that may not be easy for everyone to achieve. 

So far, reports from the trenches are not good. Sheriffs have not been great about complying with the reports they are required to produce. We’ve heard that the Norfolk County DA’s office is refusing to take a position on motions for release until they are filed. The Committee for Public Counsel Services, which oversees all appointed counsel in the state, does not yet have policies or procedures for appointing counsel to folks who don’t have it or for overseeing the work of existing counsel. 

Given the wide gap that often exists between how district courts do business and how the appellate courts think they ought to do business, it is unsurprising that what looked like a straightforward process on paper is looking like it will be incredibly messy and cumbersome in its implementation. 

Constitutional Challenges – Once the COVID-19 pandemic reaches epic proportions in the jails, we will have a problem of constitutional dimensions. Cruel and unusual punishment is prohibited not just by the 8th Amendment to the US Constitution but also by article 26 of the Massachusetts Declaration of Rights.  In general, the Declaration of Rights grants greater protections than the Federal Constitution, which gives the courts in Massachusetts leeway to recognize the rights of individuals even when the rest of the country lags behind. It is well established that conditions of confinement, including access to medical care, are encompassed by both the 8th amendment and article 26. There will undoubtedly be cases about this in the near future.

Individual Motions  – This case is full of great language about how serious Covid-19 is and how important it is to reduce the risks to our incarcerated population. The SJC has left trial court judges with a lot of power to determine who gets out and who doesn’t. Now we’ll see how they use it. The standing orders of each court lay out timelines for the filing of motions for pretrial detainees who do not get a presumption of release and for sentenced defendants filing motions to stay pending appeal, motions to revise and revoke their sentences, and motions for new trials. 

The decision, filings, and oral arguments are all available online.   

 Christie v. Commonwealth

The Issue:

This case specifically addressed  inmates who are serving sentences, but whose cases are pending on appeal. Trial courts have broad authority to stay those sentences until the conclusion of the appeals. The question was whether a judge who had denied a motion to stay a sentence pending appeal before the Covid-19 emergency could consider a new motion to stay based on Covid-19. 

The Bottom Line: 

People are entitled to bring motions to stay their sentences because of Covid-19 and judges should not consider denial of past motions in making their decisions. In ruling on those motions, judges need to consider not just the risk to the community that releasing an inmate might pose, but also the specific risk to that inmate’s health and safety if they stay in jail and the general risk presented by conditions in the jails and prisons. 

Why It Matters:

First, this applies to a significant number of people, and is the clearest or only path to release for many people serving sentences.  Every case that ends with a lost jury trial should at least be referred for an appeal, and the appellate process takes long enough that it is common for people to wrap up their house of corrections sentences while their appeals are still pending. 

Second, this case makes it absolutely clear that the Supreme Judicial Court views Covid-19 as a change in circumstances that warrants a reevaluation of whether or not someone should be incarcerated. This case is relevant not just to motions to stay sentences, but also motions to revise and revoke sentences, motions for a new trial, and bail arguments on new cases. 

Perhaps more importantly, the court acknowledged that keeping people in jail presents a threat to both individual and community health, and judges should consider that in deciding whether or not to release someone.  While this may seem obvious, some judges were refusing to consider COVID-19 as a factor for release without being ordered to do so by a higher court. 

What’s Next:

Litigation About Procedure – In the slue of orders that came down from the trial courts on April 6 were orders requiring the Commonwealth to respond to motions to stay within two weeks, but setting no timeline for the courts to actually schedule the hearings. The defense bar is not happy about this, and takes the position that this lax timeline is a violation of the holding in CPCS & MACDL v. The Chief Justice of the Trial Courts. You can expect to see litigation on this issue soon. 

Individual Motions – Now that the SJC has issued this decision, we hope that everyone who can bring one of these motions will do so. We don’t yet know how individual judges will receive these motions, and that will likely determine how this fight goes forward in the weeks and months ahead

The decision and oral arguments are available online. 

With this constantly shifting landscape, it is more important than ever to have skilled, zealous counsel on your side. We at PiltserCowan Law are here to help. 


Getting People Out of Jail During the Covid-19 Pandemic, and What a Lawyer Can Do

Things are changing quickly! Check out our April 7th update for the most recent news about decarceration litigation in Massachusetts.

Over the past week the first cases of Covid-19 have begun to appear in Massachusetts prisons and jails. Given how the virus has affected the rest of the world, it is only reasonable to assume that it will soon be widespread and that correctional institutions will be hard-pressed to deal with it. There is only one solution to this looming crisis: a rapid reduction in the population of prisons and jails and the release of as many vulnerable individuals as possible. This article will address what political and judicial steps are being taken in that direction and what steps a lawyer can take to fight for the release of an individual prisoner. 


County District Attorneys & Sheriffs 

With the exception of the Suffolk County District Attorney’s Office, the district attorneys and sheriff’s departments in Massachusetts have taken the position that releases should be done on a case-by-case basis and have in most cases insisted that they can take adequate steps to contain the spread of Covid-19 without the need for mass releases. Andrea Cabral, the former sheriff of Suffolk County, disagrees saying, “It is insane to say that adequate protocols already exist for a disease about which you know virtually nothing.” 

According to the Department of Corrections Quarterly Report on the Status of Prison Capacity for the 3rd quarter of 2019, Barnstable, Bristol, Franklin, and Worcester counties all had jails that were over capacity last year. According to that same report, a majority of Massachusetts Correctional Facilities were functioning above capacity. The solutions proposed by law enforcement are very unlikely to create the space and resources necessary for these facilities to cope with the coming crisis. 

The Emergency Petition for Relief

Last week, the Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers filed an emergency petition asking the Supreme Judicial Court to order the release of large numbers of people from state jails and prisons. That would include: 

  • People who are eligible for parole, except for those incarcerated for violent crimes. 
  • People who will wrap up their sentences within 6 months; 
  • People incarcerated on probation or parole violations that did not involve a new criminal charge. 
  • People who are over the age of 60, except those incarcerated for violent crimes.  
  • People who have been diagnosed with a condition or disease that puts them at increased risk of severe COVID-19 complications and death, including cardiovascular and respiratory disease, diabetes, and liver disease; 
  • People who qualify for medical parole; 
  • People serving house of corrections sentences for nonviolent offenses; 
  •  Anyone else for whom a release or stay is appropriate. 

The petition also asks the court to take a number of steps to reduce the number of people going into custody or needing to engage with the criminal justice system in ways that are incompatible with public safety (like random drug screens performed at courthouses). It also asks the court to vacate all currently outstanding warrants. This would be a huge step, as at the moment there appears to be no way to remove a warrant without surrendering oneself to the police. 

If you are wondering what the state should be doing to deal with the ways in which this crisis impacts people accused and convicted of crimes, this petition is what the experts in the trenches have to say about it. 

The case is scheduled to be heard by teleconference on March 31. Updates and copies of the filings can be found here:

The Emergency Legislation

A bill is pending in the state house (HD4963) that would require the release of a similarly large number of people within 14 days. It’s language is similar to that of the Emergency Petition for Relief in terms of who it would release from jail. In some ways, it is even more expansive, as it would release people held on bail for chapter 265 offenses unless they posed a threat to the safety of the community. However, the bill lacks the other provisions that address other aspects of the criminal justice system that need to be altered to deal with the pandemic. 

This is a great piece of legislation. However, 14 days is already too long, and the bill hasn’t even been before the state senate. It is unlikely that it will be enacted quickly enough to prevent the spread of Covid-19 in the jails and prisons. We’ve reached out to the bill’s presenter via twitter for an update on the status of this legislation, and will post her response when we receive it. 


Access to the courts is extremely limited right now. All courthouses are closed to the public, and an increasing number are closed altogether. Everyone is scrambling to maintain some semblance of a justice system with greater and lesser degrees of success. Unfortunately, that means it is almost impossible for a person to do any of these things without an attorney who knows the system and can find ways to get a case before a judge. 

This situation is practically untenable and constitutionally offensive, but it is also the world we live in at the moment. So while some of these remedies are usually available without the assistance of an attorney, even those are unlikely to be successful at the moment without professional assistance. 

For People Held Before Trial

If a person is held on a district court bail, it can be reduced or changed to a release on personal recognizance by means of either a motion to reconsider bail in the district court or a review in the superior court. A motion to reconsider is exactly what it sounds like, a motion before the court, ideally the same judge, who issued the original detention order asking them to find that a change in circumstances warrants a change in conditions of release. In a bail review, a justice of the superior court takes a fresh look at the case and makes their own determination about what the terms and conditions of release should be. Both of these can be done in a single case, and which to try first is a strategic decision that should be made based on individual circumstances. 

A person held on a superior court bail doesn’t have the option of a bail review, but can nevertheless move for reconsideration at any time. 

The Alaska Court of Appeals issued an order last week in Karr et al. v. State holding that Covid-19 constitutes a change in circumstances for the purposes of reconsideration of bail and detailing all the reasons why. Alaska is very far away from Massachusetts, but their reasoning applies universally. There is undeniably a new and different public health risk associated with pretrial detention, both to individuals and to the incarcerated population as a whole. At the same time, the biggest factors generally considered in making bail determinations, risk of flight and risk to the community, are affected by the current situation. With everyone confined to their homes, fewer flights available, fewer cars on the road, and countries closing their borders, a person’s ability to flee is significantly less than it was before large portions of the country went into semi-isolation. At the same time, crime rates across the country have dropped significantly. The shuttering of businesses and the banning of gatherings of any kind make it more difficult for an individual to be any sort of threat to the community. 

These arguments are applicable to just about any case. However, people who are particularly vulnerable to Covid-19 and/or people who are charged with non-violent offenses stand the best chances of success.  

These proceedings are useful not just for folks who are incarcerated as a result of conditions of release, but also for people who have conditions that have become untenable. If, for example, the drug testing that was made a condition of release has become unreasonable because it now requires a vulnerable person to take public transportation and enter a public building, these procedures can provide relief. 

For Cases Pending On Appeal

If a case is pending on appeal, the trial court has discretion to stay further execution of the sentence. That means the sentence would essentially be on hold, and in the meantime the person would get out of jail subject to whatever conditions the court imposed. The court can, of course, impose conditions up to and including 24-hour house arrest. 

In ruling on such a motion a judge should consider whether the appeal is actually strong enough to be worth winning, and whether the defendant is a danger to the community. As discussed above, a person’s ability to be a danger to the community is vastly altered by Covid-19.  

A motion to stay a sentence pending appeal is a way for judges to release people who they may not have otherwise considered releasing because of these new, unique circumstances. 

For Everyone Else

If a person has been sentenced and their case is not pending on appeal, there are still some avenues that can be pursued. These include:

  • Constitutional Arguments – The 8th Amendment to the United States Constitution and Article 26 of the Massachusetts Declaration of Rights both prohibit cruel and unusual punishment. This includes the conditions under which inmates are housed. At the moment Covid-19 presents a risk to the health and safety of potentially every incarcerated person in the world. As discussed above, law enforcement officials have shown an unrealistic and dangerous disregard for the potential catastrophe they are facing. It therefore makes sense to ask the courts to intervene in individual cases, just as they are being asked to intervene for the prison population as a whole. There are a variety of mechanisms by which this can be done, and which one is most likely to be successful should be an individualized strategic decision. 
  • Petition for Medical Parole – Medical release only applies to people who have apparently incurable conditions that make it unlikely that they will be able to commit a crime and whose illness requires specialized care or housing. This group has arguably ballooned to include everyone who is vulnerable to Covid-19 because of age or a pre-existing medical condition and would therefore need to be in extreme isolation if released into the community. 

This pandemic is new territory for all of us, and the justice system is no exception. We can’t say what judges will and will not be willing to consider or do, and chances are that individual judges will vary dramatically in how they choose to respond to requests for release. It is an extraordinary time, and that makes it an ideal time to try creative strategies. Under these circumstances, there really is no harm in asking. 

Now more than ever, we at PiltserCowan Law, LLC are available to help. 


Do You Need a Lawyer in Family Law Cases? What the Grullon Case Tells US

by Rachel Biscardi

On January 9, 2020, the state’s highest court, the Supreme Judicial Court (SJC), held oral arguments in the case of the Department of Revenue (DOR) v. Grullon to determine whether a defendant facing incarceration in a civil contempt case has a right to a court appointed attorney under the federal and/or state constitutions.  Most people understand, from popular media, that defendants have a right to counsel in criminal matters because of the possibility of jail and the accompanying loss of liberty. What happens in civil cases, such as family law matters, where the court can also deprive a litigant of the same constitutionally protected loss of liberty?

The facts of Grullon demonstrate the dangers defendants face when they are not represented by counsel.  After Mr. Grullon’s divorce, the court ordered him to pay child support through DOR. When he failed to pay, DOR filed a complaint for contempt against him.  Mr. Grullon, working with Veterans Legal Services, filed all the necessary paperwork to respond to the complaint and requested a modification seeking a reduction in child support.  However, on the day of the hearing, Mr. Grullon represented himself against DOR. The hearing lasted only eight minutes, but by the end of the hearing, Mr. Grullon found himself ordered to spend ten days in jail.  Mr. Grullon had made two mistakes before the court that a competent, experienced lawyer would never have made.

First, Mr. Grullon did not know the law: the court must find that he had the ability to pay child support before finding him in contempt. SeeSalvensonv.Salvenson, 370 Mass. 608 (1976); Larsonv.Larson, 28 Mass.App.Ct. 338 (1990). The legal standard for child support contempt is fairly straightforward: the order must be clear, and the child support payor must have the ability to pay child support at the time of the contempt hearing.  See id.The transcript indicates that almost no time was spent discussing whether Mr. Grullon had the ability to pay the child support order.  Had Mr. Grullon hired an attorney, the lawyer would have argued that Mr. Grullon was a veteran, received veteran’s benefits, and could not afford the child support amount.  The lawyer would have corrected the DOR attorney who implied that Mr. Grullon had the ability to pay, despite the evidence to the contrary on his financial statement. A lawyer would have argued that Mr. Grullon’s earlier filing of a modification seeking a lower child support order also evidenced his inability to pay the current child support order.

Second, Mr. Grullon did not communicate appropriately with the court.  Mr. Grullon attempted to tell the judge that the child was receiving veteran’s benefits, but he failed to express himself clearly.  The judge, initially sympathetic to Mr. Grullon, misunderstood him and presumed he was being flippant about his ex-wife’s need for child support.  Mr. Grullon later admitted to the Court that he really “stepped in it”. It is hard to say whether his words, his tone, or maybe even facial expressions made the judge angry, but the judge’s next act was to order Mr. Grullon’s incarceration. With as many as fifty motions before the court each day every second counts, and Grullon shows how quickly a judge can change their mind about a litigant.  Through training and experience, lawyers know how to prioritize what the court needs to hear. More importantly, attorneys know how to stop clients from the accidental self-sabotage that could lead to jail time.

The United States Supreme Court has held that due process does not require a state to provide counsel to unrepresented child support payors if the state, through alternative procedures, can fairly determine the “crucial incarceration-related question of whether the supporting parent is able to comply with the child support order.” Turner v. Rogers, 131 S.Ct. 2507 (2011). The SJC must now decide whether the court violated Mr. Grullon’s due process rights by not providing him with counsel.  Their decision will determine whether civil courts must provide counsel to a civil defendant at a hearing where incarceration is possible, and if so, is that right to counsel limited to cases where the government is a party, a situation in which its cadre of experienced attorneys creates a significant power imbalance against the unrepresented individual defendant. 

If the SJC finds that a right to counsel only exists in cases involving the government as a party, a large percentage of child support payors will continue to be unrepresented, and will continue to make the same mistakes Mr. Grullon made, leading to their incarceration.  It may be that the courts will have to take a more proactive role in ascertaining information about the defendant’s ability to pay, forcing judges closer to abdicating their role as neutral fact finders in order to make the case for the child support payor.

Regardless of the outcome, DOR v Grullon has alerted the general public to the possibility of incarceration in civil matters and not just in criminal cases.  Hopefully, this case will also serve as a reminder that lawyers, as protectors of the constitution, need to be appointed in cases where a fundamental right is at stake.

We invite you to contact PiltserCowan Law at 617-749-2353 with any questions you have about family law, custody, child support, or the Grullon case.


International Clients

We at PiltserCowan Law take great pleasure in serving a globally diverse clientele, from a variety of linguistic, cultural, and national backgrounds.

International clients present a variety of issues that not all lawyers are prepared to deal with. For example, if you encountered legal trouble while traveling, your case may impede your ability to return to the United States, while your inability to return to the United States may interfere with your ability to resolve your case! In one recent case, our client was charged with a variety of public order offenses while departing the country, and we were able to resolve the case with the client appearing in court by video conference. In many cases, we will also work with an immigration attorney to make sure that our client’s ability to enter or remain in the US is protected.

International clients whose native language is not English have the right to a court certified interpreter for all proceedings. Even if the client is conversant in English in their day to day business, the high stakes of a court case and the specialized vocabulary make the presence of a professional interpreter crucial. For the same reasons, we work with interpreters to support client meetings in the office, and we can arrange to have interpreters present for phone calls as well. In some cases, documents in the client’s language may need to be translated for the court, and our interpreters can assist with that as well. To facilitate payment of fees, we can accept international credit cards as well as international bank transfers and cryptocurrency transfers.

Our attorneys and staff welcome our international clients and are sensitive to the special issues these cases present. While it should go without saying, we are comfortable working with a variety of foreign accents and always place our client’s comfort first.

If you need a lawyer for a criminal case in Greater Boston, give us a call at 617-749-2353!


209A Abuse Prevention Orders

By Melissa Tobin, Esq.

In order to get an abuse prevention order under Massachusetts General Law chapter 209A, the person making the request must satisfy three requirements. They need to live in the geographical area of the court, they must have a certain type of relationship with the abuser, and they must be suffering from abuse.

To satisfy the first requirement, a person must seek an abuse prevention order in a court which serves the county where they live, unless they moved away from their home to avoid abuse. If so, the court located in the county where they once lived can also retain jurisdiction.

The purpose of abuse prevention orders is to protect against domestic violence. Therefore, in order to qualify for an abuse prevention order, the following things must be true or have been true recently between the victim and abuser:

  • married
  • in a substantial dating relationship
  • related by blood
  • have a child in common
  • be residing together in the same household

For situations where a person is suffering from abuse or harassment and is not in one of these relationships, they may be able to seek relief under Massachusetts General Laws chapter 258E, referred to as a harassment prevention order.

The final requirement is that a person must be suffering from abuse. This is usually the only contested issue. There are three different types of abuse which will qualify a person for an abuse prevention order. To obtain an abuse prevention order a person must show: (1) evidence of physical harm or attempted physical harm, (2) reasonable fear of imminent serious bodily harm, or (3) involuntary sexual relations. If (1) or (3) have been shown, it is not necessary that a court find it is reasonable for a person to still be in fear.

The process for obtaining these orders starts with a person filing an application in court. To do this, they can go to court during business hours, go to the clerk’s office, and ask to fill out the application. Their application will include an affidavit containing the allegations of abuse. That same day, the person seeking the order will go in front of a judge and tell the judge why they need the order. In the majority of cases, the judge will grant a temporary order of up to 10 court business days. These are called ex parte orders and are issued without prior notice to the other party. The court will then send the temporary order and notice of the next hearing date to the alleged abuser.

The next hearing will involve both parties. Each side is given an opportunity to tell the court their side of the story and present evidence. In cases involving no evidence other than testimony from the parties, the judge will need to determine whose story they believe more and decide whether or not the allegations meet the requirements of abuse as discussed above.

If the alleged abuser does not attend the two-party hearing, this will almost certainly result in the abuse prevention order being extended for 1 year. These orders usually contain stay away orders for the plaintiff’s home and work. If the defendant lives with the plaintiff, it will force them out of their home. If the defendant shares children with the plaintiff, the defendant is at risk of being ordered to stay away and not contact the children.

Unfortunately, although these cases involve very serious consequences for both plaintiffs and defendants, there is no right to appointed counsel. This often leads to parties showing up for hearings unprepared for the gravity of the situation.  They may feel blindsided by how quickly judges will make determinations on very little evidence that will have a significant impact on their lives.

If you need counsel for a 209A abuse prevention order or 258E harassment prevention order case in Massachusetts, give us a call today at 617-749-2353 for a free consultation with one of our criminal defense attorneys.


Arrested on New Years?

Everybody hopes for a peaceful, uneventful New Years Eve celebration, but the day is unfortunately a peak day of the year for drunk driving and domestic violence arrests. It can also be a difficult time of year to get arrested, with attorneys on vacation and finances stretched from holiday expenses.

Wooden gavel, soundblock, scales and stack of old books against the background of a row of antique books bound in leather

If you have the misfortune to find yourself under arrest this New Years, give us a call. We have attorneys ready to take your case, and for those who need a bit of financial flexibility, affordable monthly payment plans for as low as $500 per month, with no money down and the first payment due 30 days after signing.

Give us a call today at 617-749-2353 for a free consultation with one of our criminal defense attorneys!

Criminal Defense in the news

“Believe Survivors” vs. “Due Process”

[CW: discussions of sexual assault and questioning survivors’ veracity]

By Andy Piltser-Cowan and Jade Piltser-Cowan

This is a topic that we have been wanting to write on for a while.  It’s something Andy has grappled with over the years as an attorney of conscience whose job is sometimes to represent the accused, and other times the victim, and of course is also a member of society free to have his own opinions when not representing a client.

What do we mean when we say “believe women” or “believe survivors?”  Some folks say, “when you report a robbery, or a theft, or some other crime, nobody starts by asking how you fought back, what you were wearing, or whether you made it up.”  This is mostly true,  although if the case goes to trial, a defense attorney might ask any one or more of those things to try to poke holes.  
On the other hand, imagine that a member of the community comes to you and says they were mugged on the street last night, at knife-point, and relieved of their cell phone.  They have no injuries, because they yielded the phone when the attacker displayed a knife.  They are shaken up, and not sure what to do, but they can identify the assailant as a man they met at a cocktail party earlier in the night.  They had a few drinks at the party.  Our first reaction to this person is not “did you fight back?” Or “are you sure you remembered it right?” or “was it really robbery if they didn’t hurt you?  Did they actually pull the knife, or just say they had a knife?”  Or “maybe you just had a lot to drink and forgot what you did with your phone.”
The police identify the assailant based on the description.  He is carrying a knife and the victim’s phone.  It’s a 4″ folding knife, where the victim described a 6″ straight knife.  The victim described him as having a celtic knot tattoo on his neck, but it’s actually a Celtics shamrock.  When questioned, he says that he carries the knife for work, he found the phone on the street, and he was trying to get it back to its rightful owner as soon as he could get it charged up to turn it on and identify them.  He’s had a busy day, he says, and just didn’t have the chance.
Now I can tell you with near-absolute certainty, as a criminal attorney for ten years, that any police officer in Massachusetts would make an arrest based on the strength of that evidence.  They would not shrug and say “it’s a he said/she said.”  A judge would deny a motion to dismiss.  The case would go to trial, unless the defendant entered a guilty plea.  He would have an absolute right to say his piece before a jury of his peers, who would decide if he was guilty or not.  Would you consider this case difficult to resolve?  Would you question the victim’s veracity after learning the discrepancies in the story and the suspect’s excuse?  Most of us would not.  
“Believe survivors,” at least to us, does not mean that every allegation must be taken as categorically true and beyond question, or that an accused may not have the chance to say their piece and have it taken into account.  It means that somebody who comes to the community for support after being sexually assaulted should get at least the same baseline credence as the person above, who was mugged.  It’s not a presumption of guilt or a lack of openness to hear the other side, it’s a baseline willingness to treat somebody who has been sexually assaulted with the same dignity and respect as somebody who has suffered any other violation of their person or property.

How to Appeal a Restraining Order

I get a lot of calls from people who have a 209A Abuse Prevention Order or a 258E Harassment Prevention Order against them, who contested the order at a hearing (with or without a lawyer), lost, and want to appeal.  Less often, we hear from unsuccessful plaintiffs who want to appeal the denial of a restraining order.  Often the lawyers who handle those hearings do not handle the appeals, but we do.

Here are some of the most common reasons to appeal a restraining order:

Insufficient Evidence: this is the single most common reason for successful restraining order appeals.  The law has strict requirements that a plaintiff must meet to get a restraining order.  A 209A plaintiff must show that they and the defendant are “family or household members” and that the defendant either 1) caused or attempted to cause serious physical harm, 2) sexually abused the plaintiff, or 3) caused the Plaintiff a reasonable fear of imminent, serious physical harm.  A 258E plaintiff has to show that the defendant committed three acts of willful and malicious conduct, targeting the plaintiff, that was intended to and did in fact cause fear of physical harm or property damage, intimidation, abuse, or actually caused physical harm or property damage.  Often, judges grant restraining orders when they simply feel that two people should be apart from one another, even when the plaintiff has not shown that they meet the legal criteria.  In these cases, the Appeals Court will reverse (or “vacate”) the restraining order.  We have represented defendants who were subject to restraining orders for such lawful conduct as chopping vegetables with an angry face, attending a concert, or driving down the street.  In other cases, the conduct may be improper (such as egging a car), but still not grounds for a restraining order.

Free Speech: The Appellate Courts in Massachusetts have repeatedly noted over the past six years that chapter 258E, the harassment order law, goes beyond the bounds of what the First Amendment allows by restricting protected speech.  The appellate courts have imposed what lawyers call a “narrowing construction,” meaning that they have ordered the District Court to interpret the law more narrowly than it is written to avoid trampling on Free Speech rights.  Even though this narrowing construction is over six years old, many District Court judges seem to have missed the memo, creating fertile ground for appeals when the judge applied the wrong law.

Extension Hearings: these are contentious issues for both plaintiffs and defendants.  If a plaintiff comes into court on the date the restraining order is scheduled to expire and asks it to be extended, the judge is supposed to grant the extension in one of two cases.  First, the defendant perpetrated an act of contact abuse (physical or sexual), and the plaintiff still wants to continue the order.  Second, the defendant put the plaintiff in reasonable fear of imminent, serious, physical harm, and the plaintiff shows that the reasonable fear still continues.  Plaintiffs most often appeal in contact abuse cases where the judge has mistakenly applied the wrong law and denied the restraining order on the grounds that the plaintiff no longer suffers a “reasonable fear.”  A defendant may appeal an extension when the judge extended the order for some other reason.  We have seen illegal extensions for reasons including “[Plaintiff] shouldn’t have to keep coming back here,” or “defendant is accused of a violation.”

Expungement and Fraud on the Court: we often hear from Defendants who want to vacate and expunge a restraining order on the grounds that the plaintiff committed fraud on the court.  Not a true appeal, these cases go back to the judge who heard the original restraining order.  To win, the defendant has to be able to prove that the Plaintiff engaged in a deliberate scheme to defraud the court and get a restraining order that they would not have gotten if the judge knew the truth.  These are difficult and expensive cases because the judge already decided that they believe the plaintiff and not the defendant, but if the defendant can bring new evidence to show fraud, the judge may consider a motion to vacate and expunge.

Plaintiff Appeals from Denied Restraining Orders: sometimes we represent plaintiffs who appeal after they were denied the protection of a restraining order.  Most disturbingly, we have a case currently pending before the Mass Appeals Court where a judge denied a rape victim a restraining order against her rapist because he didn’t “physically” abuse her.

If you have an issue with a restraining order in Massachusetts and want to talk about an appeal, please give us a call at 617-749-2353.  We also welcome referrals and co-counseling inquiries from trial/hearing counsel.



Congrats to Attorney Tobin!

Last week in Dedham District Court, Attorney Melissa Tobin successfully won a “not responsible” finding for her client.  The client was charged with an illegal U-Turn and an illegal right turn on red.  Attorney Tobin was able to show the judge that there was no sign prohibiting the U-Turn, and that the “no right on red” sign was not visible at the time the client passed it.

The judge found Attorney Tobin’s client “not responsible” on both counts.