Winter 2015 Newsletter: Civil Provisions of the Act Relative to Domestic Violence

By Rachel B. Biscardi

The public outcry after Jared Remy murdered Jennifer Martel prompted an inquiry into whether Massachusetts needed to enact additional legal protections for domestic violence victims that would encourage them to seek resources and protection.   House Speaker Robert DeLeo and Attorney General Martha Coakley met with advocacy groups, spoke to victims directly, and engaged lawyers who work with victims and incorporated their suggestions into an omnibus bill which became known as An Act Relative to Domestic Violence (“Act”).  The Act went into effect on July 1, 2014.  Although much of the Act focuses on criminal law, domestic relations practitioners should note the civil provisions of the bill which may impact their clients. 

Most notably, Sections 10-11 allow a victim of domestic violence to take leave for domestic violence related reasons, including appearances in the Probate and Family Court.  Clients, whose employers have 50 or more employees, may take up to 15 days leave during a 12 month period for any domestic violence related absence.  The client must have used all of his or her time and it is at the employer’s discretion whether it is paid or unpaid.   The client’s employer may not demand an to employee provide court pleadings, including General Laws Chapter 209A Abuse Prevention Orders (“209As”) or police reports.  At most, the employer may require an employee to sign an affidavit stating that s/he is taking leave because s/he is a victim of domestic violence.

The 209A statute remains largely unchanged.  However, Sections 12-13 of the Act allow a District Court judge to temporarily override a Probate Court custody order in emergencies for 30 days.  The parties are then expected to return to Probate Court for a final adjudication of custody.  Notably, this provision may not impact many litigants because it is rarely a custody order that needs to be changed in the event of an emergency, but, instead, a parenting time order.  Moreover, Sections 12-13 do not amend 209A Section 3, which continues to authorize the District Courts to issue a custody or child support order for the duration of the 209A and the Probate and Family Court’s ability to modify such an order if appropriate. 

The Act improves the type of information provided to both parties after the court issues a 209A.  Pursuant to Section 14, defendants will receive an information sheet on batterer’s intervention, alcohol and substance abuse counseling, and financial counseling.  Pursuant to Section 41, all parties subject to 209As will receive information on sexual assault and domestic violence survivors.  Hopefully, these information sheets will provide resources for clients to assist them in issues that arise frequently in 209As: such as what kind of contact, if any, is prohibited under the order, how to transfer personal possessions in a vacate order, and how to access lawyers for any future family law related issues. 

Section 7-8 makes all reports of sexual or domestic violence communications between police officers and victim confidential, including police logs.  It is easy to understand the need for such provisions, especially in sexual assault cases.  However, Sections 7-8 may prove more difficult for lawyers who represent domestic violence victims to prove that their clients were abused.  While there is an exception for victims or those authorized by the victim to access those records, a lawyer who wants to discover whether the alleged perpetrator had abused other victims will need to know the names and have the authorization from the other alleged victims.  Evidence that abuse occurred with someone outside the relationship makes it easier for family law lawyers to disprove the “he said, she said” phenomena.     

Sections 16-17 prohibit visitation to a parent who has been convicted of rape.  The court may only order visitation if it finds that visitation is sought by an age appropriate child and the best interests of the child are served by the visitation.  Additionally, if a child is conceived during the commission of a rape and a parent is convicted, the conviction is evidence of “serious abuse” by the convicted parent for purposes of General Laws Chapter 208, Section 31A.

Section 29 prohibits the practice of accord and satisfaction, pursuant to General Law Chapter 276, section 55, in all cases involving violations of a 209A or a criminal act constituting domestic violence.  This is important for family law practice because, previously, criminal defendants, through their lawyers, could offer civil compensation to victims of domestic violence in exchange for the victim not assisting in the prosecution of the criminal case.  Lawyers who represent either party in a family law case, must note that this civil remedy no longer exists and cannot be used to negotiate a criminal matter.

There are many provisions throughout the Act that focus on communication between the criminal and civil agencies and courts.  Section 4 establishes state and local domestic fatality review teams.  Sections 1, 5 and 18 require regular sexual assault and domestic violence trainings for those who interact with domestic violence victims such as police, court personnel, assistant district attorneys, and judges.  Section 6 creates a fund within the Department of Public Health to support innovative practices to prevent sexual and domestic violence and provide assistance to victims.

The most important aspect of An Act Relative to Domestic Violence is the legislature’s recognition that domestic violence is a system-wide issue.  In order to reduce domestic violence, criminal and civil laws must mesh cohesively.  Without authorized leave from employment, a victim may not have the financial means to go forward on his or her criminal case.  Without referrals to civil agencies, mothers and fathers who have been abused will not have the social services support or access to legal representation in the Probate Court.  Without sharing models of best practices, agencies may inadvertently spend time and energy recreating a training model that may already exist.  Without all the necessary pleadings from each of the courts, judges will not have all the information they need to make a decision on a case.  Even as some of the more difficult aspects of the Act get ironed out, the bill provides a framework for communication between agencies and the courts which will hopefully prevent a future Jennifer Martel case.

Rachel Biscardi
is the Director of Pro Bono Project at the Women’s Bar Foundation (WBF) where she oversees the five pro bono projects of the WBF.  She specializes in family law and, through the WBF’s Family Law Project, she recruits, trains, and mentors volunteer attorneys to represent low-income victims of domestic violence. She is the recipient of the 2013 Lawyer’s Weekly Excellence in the Law Award, the 2013 Boston University School of Law's Public Interest Award, and the 2011Women's Bar Association's Certificate of Service. 

Before joining the WBF, Ms. Biscardi worked at Community Legal Aid, the Essex County District Attorney’s Office, and clerked in the Probate and Family Court.  Ms. Biscardi teaches family law at New England Law, Boston and Northeastern University School of Law.  She also helps supervise the Family Law Clinic at New England Law, Boston.  In 2010-2011, Ms. Biscardi served as the Women’s Bar Association’s (WBA) representative on the Legislative Task Force on Alimony which drafted the Alimony Reform Act of 2011.  In 2014, Ms. Biscardi participated on the Governor’s Working Group on Child-centered Family Laws and the Trial Court’s Domestic Violence Education Task Force.  Ms. Biscardi served as co-chair of the Domestic and Sexual Violence Coalition from 2008-2013.  She is a member of the Boston Bar Association’s Family Law Steering Committee and the Legal Services Family Law Task Force. 

In 2014, Ms. Biscardi published a Law Review Article entitled: “Dispelling Alimony Myths: The Continuing Need for Alimony and the Alimony Reform Act of 2011.”  She has also authored several articles on the value of pro bono work in such journals as the BBA Family Law Journal and the WBA Chronicle and appeared in television shows such as “Chronicle” and “Greater Boston with Emily Rooney”.  Ms. Biscardi is a graduate of Boston University School of Law with a specialization in litigation and dispute resolution.