Interplay Between Restraining Orders and Fifth Amendment Privilege Against Self Incrimination

What the heck does that mean?

In a recent Supreme Court Case, SINGH v. CAPUANO , the Supreme Court held that an evidentiary hearing must be held in a restraining order case and that the statute 209A must be closely followed and that one’s right against self-incrimination is weighed in the context of the hearing and so should not be used as a reason to not have said hearing.

The facts of the case are as follows:

Singh, the victim, on February 14, 2013, filed a restraining order against Capuano. Temporary orders were issued granting custody of the parties’ minor child to Singh and directing Capuano to have no contact with, to stay at least fifty yards away from, and not to abuse Singh or the child.

Before the 10 day hearing, which is the proceeding where both parties can state their case as to why the restraining order should or should not be in place, a criminal complaint was issued against Capuano. The judge, at the 10 day hearing, refused to hear evidence over Singh’s objection and extended the order until April 11, 2013.

On April 11, 2013, the parties appeared with counsel before the same judge, and Singh again requested a hearing and a one-year extension of the order. Once again, the judge declined to hold an evidentiary hearing, referencing concerns similar to those he had raised previously. Over Singh's objection and without hearing the evidence, the judge declined to extend the no-contact and stay-away provisions of the extant order; extended the no-abuse provision for three months, until July 11, 2013; stated that the order would be subject to any orders of the Probate and Family Court; and continued the matter until July 11.

The judge who originally heard the ex parte hearing (e.g., when a person who is in need of a restraining order appears without the perpetrator of the domestic violence being present) heard the parties on July 11 and vacated all parts of the order except for the no-abuse provision and “summarily refused to draw an adverse inference.”

On its own motion, the court consolidated both appeals and reviewed the lower court judges’ decision holding that “without first hearing the evidence, a judge should not, over objection, vacate any provision of a c. 209A order once issued, as the judge in this case did with the no-contact and stay-away provisions.”

The court also went on to comment on one’s right to self-incrimination in the context of restraining order hearings, stating that “the assertion of the privilege against self-incrimination ought to have been considered and weighed as part of the evidence in the case”. The court further went on to comment on whether it was proper to comment on visitation, custody or any other issues in the context of a restraining order. They held that it is not. The purpose of a restraining order is to protect the aggrieved party and the judges must follow the statute and protect the plaintiff. Judges must not grant continuances lightly and do their best to accommodate victims of domestic violence.

Practically, what does this case mean? For a victim, that you are entitled to an evidentiary hearing, even if your abuser is facing possible criminal charges and thus could potentially incriminate himself in said hearing. You are entitled to an evidentiary hearing whether you are in a Probate and Family court or any other court in the commonwealth. A judge must take into account need for protection and the length of that protection and not any other impermissible factors. A person’s right against self-incrimination is considered and weighed as part of the evidence in the case.

Why You Should Not Dread the Parent Education Class

 

 

It seems like only yesterday that you are cutting the cake, putting on the veil and the best man or maid of honor is telling a mildly inappropriate joke to a room of your family and closest friends. You have made the decision to separate from your significant other, or you have been served with divorce papers. And now the state is requiring me to take a class?

I had the distinct pleasure of sitting through one of the very same classes taught by Ann Steele LICSW and her colleague[B1] .  I want to begin by thanking the parents who allowed me to participate in the class. Describing their painful shared experience. I learned that next to experiencing the death of a spouse or love one, divorce is the third most painful human experiences according to studies. As divorce is one of the most painful experiences you will ever go through the course helps one to identify and sheds light on the feelings they are feeling as well as the stages they’re going through. As litigants begin the divorce process the course confronts issues such as, co-parenting, the stages of grief, and the issues your child may confront during this traumatic time. The course also expounds on what to expect from your child as they navigate through the process themselves.  Day one focuses on the feelings of the parents and early childhood development. Whereas day two to focuses on adolescence and the future of the family.  I would encourage each of my clients to attend this training not because it is mandatory but rather because it is necessary for the betterment of your family.  My father always told me that you must play the hand that you are dealt. Divorce ultimately can be a shocking and devastating hand but it is up to both parties involved to play that hand to the best of their ability.  I’m a better attorney and you will be a better parent having had the experience of taking the divorce state-mandated course. Yes it is mandatory. Yes it is a cost $80, and yes is worth it. Who knows you may find a support group or even a new friend who has the same shared experience. The classes take place at the Dedham community house.

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 [B1]

Announcement, new Co-Chair

I'm delighted to announce that I'll be assuming the Co-Chair of the BBA Communications Committee where we publish a quarterly newsletter on Family Law.

Please see link here:

http://www.bostonbar.org/sections/family-law/family-law-newsletter