The
Fatherhood
Coalition
For Immediate Release
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Milford, July 11, 2005 - A study of how one court in Massachusetts
applies the abuse prevention statute (MGL ch.209A) as measured by
the issuance of "209A restraining orders" has just been published in
the June issue of Journal of Family Violence, an academic journal on
domestic violence issues.
"A Measure of Court Response to Requests for Protection," by the
Fatherhood Coalition's Steve Basile, examined the 209A restraining
orders issued in Gardner District Court in 1997. The study reveals a
clear double standard in the court response to alleged victims of
domestic abuse/violence. In each of the benchmarks, women
plaintiffs (victims) were treated more favorably than men, and
likewise, male defendants were treated more harshly than their
female counterparts.
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"The message couldn't be clearer. If you are a father suffering
domestic violence, using the legal system to gain protection for
yourself is a high risk proposition that may result in you losing
custody and even contact with your children."
─ Steve Basile, study author
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Among the study's findings:
When compared with other attributes of the litigants, sex was by far
the greatest predictor of whether or not a restraining order would
be issued and of the severity of the restrictions imposed on the
defendant.
At ex parte hearings, where only the victim is present and the
defendant is unaware of the proceedings, men were 240% more likely
than women to be denied the immediate protection of an emergency
restraining order.
Women were 38% more likely than men to be granted an emergency
protection order at an ex parte hearing.
At follow-up 10-day hearings, when victims seek an extended or new
restraining order, men were 383% more likely to be denied
protection.
Women were 32% more likely than men to be granted a new restraining
order when protection was pursued at the follow-up10-day hearing.
Overall, with and without children in common, men were 29% more
likely to be evicted than women and 110% more likely to be evicted
if they shared a common child.
The Fatherhood Coalition is especially concerned about the use of
209A restraining orders as "first strike" weapons in divorce/custody
battles. The study also analyzed court response with respect to
granting of custody of minor children when the litigants are parents.
Mothers were 288% more likely than fathers to receive custody of
children as a direct provision of the 209A order. However, in the
few cases where fathers received custody, which was only at ex parte
hearings, none of the fathers secured long-term custody of their
children at the 10-day hearing.
According to Basile, "The message couldn't be clearer. If you are a
father suffering domestic violence, using the legal system to gain
protection for yourself is a high risk proposition that may result
in you losing custody and even contact with your children."
The first phase of the study was published in the Journal in
February, 2004. That report provided a qualitative analysis of all
of 382 non-impounded 209A restraining orders issued in the
courthouse, examining the type and degree of abuses categorized by
the sex and relationship of the litigants. For both phases, every
available restraining order docket from 1997 was examined, to
mitigate against any seasonal abnormalities or any accusations of
selective sampling. Typically, domestic violence research explicitly
excludes male victims of female domestic violence.
While the results of the first phase confirmed that women
disproportionately seek legal protection from domestic violence, the
qualitative examination of the data in the dockets, which includes
the victim's affidavit, showed that the nature of the abuse claimed
was roughly similar between men and women.
However, the second phase reveals a disturbingly high correlation
between the court decisions and the sex of the litigants.
The study analyzed the response of the court to requests for
protection at ex parte hearings, where only the victim is present,
and at the follow-up 10-day hearing.
209A abuse protection orders grant the "victim" enormous power over
their alleged abusers. Provisions include removal from one's own
home, granting of immediate custody of minor children to the alleged
victim with a consequent assignment of child support.
According to Coalition Spokesman Mark Charalambous, "It's important
to understand that a 209A order taken against a father, besides
removing all legal and physical custodial rights to his children,
also extends the no-contact provisions to those children."
Since a violation of any of the provisions of a 209A order is a
criminal offense subject to 2 ½ years in jail and $10,000 fine, any
contact a father may have with his children, direct or third-party
or even unintentional, holds him criminally accountable. This is
done without the criminal protections afforded defendants in
criminal cases because the issuance of 209A order is civil,
requiring only the minimal standard of evidence ("preponderance").
"This is why a 209A restraining order is often referred to as the
nuclear first-strike in the commencement of a divorce action,"
Charalambous emphasizes.
The Fatherhood Coalition is supporting the "209A Reform Bill" (S965,
H833), presently in committee, that addresses many of the law's most
serious flaws.
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