Learning Series: Family Law with Sherry Smith Transcription

Susan: Hello, and welcome to the Librarians by the Sea podcast, hosted by, you got it, the librarians of the Swampscott Public Library. My name is Susan Conner, and today I am taking the podcast in a little different direction. Instead of discussing a really good book, I am going to speak with local attorney Sherry Smith, who specializes in family law. Today, she will focus on issues of domestic violence, child support, child custody, and visitation rights. Getting help from the courts can be challenging, even without the COVID-19 pandemic, and Ms. Smith will give you some information and resources which may make the process easier. Some of the resources that Ms. Smith mentions are listed on the library website. Go to https://www.swampscottlibrary.org and click on the Town News tab. That will give you a list. You may need to scroll down, but the list of links is listed there. Sherry, thank you for joining me today on the Librarians by the Sea podcast. Can you tell us a little bit about yourself before you start your presentation?

Sherry: Sure. Well, welcome to family law basics. Again, my name is Sherry Smith, and a big thank you to Swampscott Library for offering this opportunity to talk with you about this important subject. I’ve been working with domestic violence victims both at Essex County District’s Attorney’s office for 20 years, and now at Greater Boston Legal Services, where I’ve been for 17 years. I’m so happy to join with you in sharing what I’ve learned, and I hope to answer some of the questions you may have about restraining orders and family law as it relates to children, and getting help in general and during the Covid crisis. This overview will be about a half hour, maybe a bit over, and there will be some time for questions from Susan. 

When you hear an opinion from me, it’s my opinion; it’s not the opinion of Swampscott Library, or Greater Boston Legal Services, where I now work, and it’s not meant to take the place of your own attorney’s advice. The links which Susan mentioned give you excellent, excellent information and give you a lot of help on these issues and much more – food banks, housing, and how to apply for unemployment and many other subjects. The two that relate most to the North shore are Northeast Legal Services, where possibly you could get representation, especially for low-income persons, and lots of other information. But it’s worth a try to call even if you’re not low-income. You may be able to get some information. And HAWC. HAWC is a shelter for domestic violence victims, but again, they offer much, much more. And those two websites are offered, in addition to where I work, Greater Boston Legal Services, GBLS, Mass Law Reform, and Mass.gov. 

Please do not worry that you have to copy down and remember everything I say, or if after my presentation you feel confused and overwhelmed. This is to be expected. The links are there to be looked at, taking your own time. Of course the assumes that you have a computer to do this or a phone to do this. The courts, like many other things, are a rapidly changing landscape, and these links will also be changing. 

A little bit about access to the courts during the Covid crisis. The already-existing order regarding the closing of the courts has been extended to June 1, 2020. What does this mean? Well, all courts are open for business, but all courts except for a few exceptions have the doors closed to the public. So the business is being done remotely, by phone, fax, mail, email, etc. This makes the process much more difficult to navigate. Before you could walk into the court and ask questions, and many courts had programs for walk-in attorneys to help you. But the links will help with this. Try calling the courts first, and if not successful, you can call the Covid helpline, with is 833-91COURT. 

However – important – restraining orders in probate court are considered emergencies. They’re also emergencies in district court, but at least in probate court, it appears to us that the way the new order is worded means that a person wanting to obtain a restraining order has an emergency. [They] could go inside the court, knock on the door, and get inside – this is for probate court – where she will able to get the forms and fill them out to get a restraining order. 

A few words about criminal law and civil law. A criminal case is where someone is charged with a crime. Civil cases are all kinds, and here is where we’re concerned with restraining orders and paternity and divorce cases. Restraining orders are civil, but violation of the restraining order is criminal. 

What is a plaintiff? A plaintiff is a party in a civil case, but in a criminal case, it’s the Commonwealth versus the defendant, and the victim is not a party in a criminal case. That doesn’t mean she doesn’t have rights, but she is not a party. 

What is a counterclaim? That means the defendant in a civil case can also ask the court for what he or she wants. So if one person took the divorce out and said, “I want A, B, C,” that doesn’t mean the other party, the defendant, can’t say, “Well, I’m filing a counterclaim, and I want C, D, F, and G.” 

It’s important to remember – to think about how judges decide cases whenever you’re going to file anything in court. There are three things that the judges consider. 

  1. One is case law. Case law is where there was a trial or a decision by a judge, and one party is not happy with the result, and they appeal to the supreme judicial court, or the appeals court, and these decisions are written up, and the judges all over can look at these decisions and decide whether or not they apply to the facts of this case. So that’s number one. 
  2. The second is statute. You’ll hear me talk about a 209A. And that’s the restraining order statute. 
  3. The third thing that judges decide is the facts of the case. So they apply the facts of the case to the case law and the statutes. Why is that important to you? Because you want to think about – what is the judge interested in when you’re filing anything in court.

Where do you go to get a restraining order in Essex County? You can go to Lawrence or Salem probate court. At the moment, it’s my understanding that only the Salem probate court is open for business and all cases are in Salem, but that could easily change or easily have already changed. So you can go to probate court, or any of the district courts. They’re located in Salem, Newburyport, Haverhill, Lawrence, and Ipswich. However, if the court is not open, you could get an emergency restraining order through a police station. Before Covid, it was only good for 24 hours or when the courts then opened, the next day the court opened. But now, because of the crisis, a judge can issue this order for as much as 10 days. It could be less, but it’s as much as 10 days. By the next date, whatever it is, the person obtaining the restraining order will have to get another hearing at the courthouse; they’ll have to apply all over again.

209A, again, refers to the statute for restraining orders, and it’s civil, I said, but it has criminal consequences if they’re violated. What does that mean? Well, if the order says, “Stay 100 yards away from the plaintiff,” the defendant is supposed to stay 100 yards away. The order is civil. But if the defendant comes within 100 yards of the plaintiff, then she can call the police and a criminal complaint could issue. 

The relationship needed for a 209A is a family relationship – currently married, formerly married, not married but related by blood or marriage, parents of one or more children, and that has been extended to include if a grandparent might be caring for a child, and the grandparent could take out a case against the father or mother. Not related but living in the same household. Formerly members of the same household. Are or were in a dating or engagement relationship. So essentially you need a family relationship in order to get a 209A restraining order. 

What are the orders which a judge can make? 

No abuse. This doesn’t only mean physical abuse. It also means threats or putting in fear. 

No contact. That’s by writing, by phone, or other [form], directly, or even through another person, as in leaving a message with a mutual friend, and the defendant says “Tell her that…” – well, that’s a violation of a restraining order. 

A court can also order the defendant to stay a certain number of yards away from the plaintiff. 

Leave and stay away from the residence of the plaintiff. Stay away from the workplace of the plaintiff. Stay away from the plaintiff’s school. And any of these addresses can be ordered not to appear on the order. 

You can also get child support through a restraining order. But violation of the order is not criminal. It’s only enforceable through contempt. 

It makes many things criminal which would not otherwise be. If someone gets a phone call from someone, or goes by someone else’s house or shows up at someone’s workplace, these wouldn’t be criminally enforceable acts, but if there’s a restraining order prohibiting these acts, then the person doing these acts could end up having a criminal complaint against them. 

A restraining order can also protect children by granting custody to the person asking for the restraining order, the plaintiff. Restraining order can order the defendant to stay away from the children and no contact with the children. Visitation, however, is only – a court can only order no visitation in probate court, not in district court. Of course, if the district court has ordered the defendant to stay away from the children, that’s essentially saying the defendant can’t have any contact. 

What will judges consider in custody and visitation issues? Both in restraining order cases, and in what I’m also going to talk about later, in paternity and divorce cases, the court is interested in the same things. Who has been the child’s primary caretaker? Who has the child lived with? What has been the involvement of the Department of Children and Families? What dangers would affect parenting ability, things like alcoholism and drug abuse? What has historically been the pattern for visitation? A judge will tend to preserve the status quo, will want to say, “You know what, this has been going on, the father’s had visits from Friday evening till Sunday afternoon for a long time, and I want to go ahead and leave that in place because it’s best for the children to have stability.” However, if there’s a reason not to preserve the status quo, there’s a reason to change the visits. And that often happens in a restraining order situation, where the situation is really chaotic and even dangerous for the children. So the safety of the child and/or the custodial parent is a reason to change the status quo. 

What is not important, again, it’s important to think about what judges will look at: the statute, the case law, and the facts of the case. It is not important whether or not the defendant is paying child support. It’s a very separate issue. Yes, you can obtain child support, but whether or not at the moment of the granting of the restraining order the defendant is paying is not important. In domestic violence situations, both the probate court restraining order cases and probate court custody and visitation situations, what can I ask for? Overnights, vacations, holidays? Well, in domestic violence cases, you can ask for supervised visits, and you can ask that they be at a visitation center or something else. Or, pick-up and drop-off can be structured for safety. Pick-up and drop-off at a police station. Again, we’re in Covid times and all of this has got to be considered with those issues in mind. Oftentimes people have orders which say that the visits are to be in a public place for the protection of the children and the person filing for the restraining order, but that may not be possible to do visits at a mall or even a police station. 

How to file for an emergency restraining order. Do I need an attorney? The 209A statute was meant to be user-friendly. It was designed, and the courts expect, that it is not necessary to have an attorney. Does an attorney help? Absolutely. So, where can I get legal advice if I can’t hire an attorney? Well, you could try HAWC. HAWC has attorneys who may be able to take your calls and give you advice and talk to you about how to present your case and also about safety planning – where are the shelters that are available, what do I do if I can’t shelter. During the Covid crisis, the restraining orders are still considered an emergency hearing, and you should get a hearing the same day that you start the process, but it is a good idea to start the process early in the morning, because the process takes some time. I’ll give you the process in normal times, but you need to ask the court how it’s being adapted to Covid. Some people think it’s fast, but it’s just not. 

There are online-fillable forms for restraining orders. When Covid is over and there are hearings inside the court, if you have children, don’t bring them to court. You could be there for hours. This is really hard on kids. Even all day. Also, the children are not allowed in the courtroom, unless possibly infants, and that’s so they won’t hear what’s being said. The court feels it’s extremely important to keep children away from these parent issues, not involve them with the court issues. Thirdly, if the child comes to court, even an infant, the child will become – I guarantee – or I can’t guarantee, but it’s likely – that the child will become a push-pull with the parents. It’s possible that the father of the child could tell the children, “Come with me.” It could be a real mess with the children in the middle, and again, the courts want to keep the children away from this court process and away from being in the middle of the conflict between the parents. 

Service of the defendant. The defendant needs to know that this case is happening. It’s not [given] by you. Unlike paternity and divorce cases, you have no responsibility with respect to giving notice to the other party. And in fact, it’s not a good idea for you to have any contact with the other party. Service is by the police department. How do they know where to go? By the address that you gave the court. What if you don’t have the address, especially with this Covid situation? That is tough. And this person, the defendant, may not be working, so it’s possible the defendant may not be able to be served at work. There’s a thing, however, called alternative service. If no possibility of serving the defendant is available, alternative service is possible, if you ask the court and the court grants it. What does this mean? Leaving the document at the last known address. Again, it’s fact-sensitive. 

What papers have to be filled out? You fill out a complaint, which is what you’re asking for, and other papers. And what you’re asking for has to do with what I told you are the things that the restraining order can give, that a judge can order – no abuse, no contact, stay away from the children, those things. 

Again, just going back to the service – if he’s not served, you will need to come back to court with your possibly or probably a virtual hearing, a telephone hearing, possibly several times, until some kind of service is done. 

So again, going back to the papers that have to be filled out – the affidavit is extremely important. The affidavit is why you need a restraining order. Note the defendant will be given a copy of anything you give to the court. So, ask the court – how can you keep your address secret, how can you keep your phone number secret, if the defendant doesn’t have these? How can you keep your work address secret, and your school address secret? Don’t write those on the papers. The court can tell you how you can keep those secrets. Again, the defendant will have a copy of the affidavit. 

What should go in the affidavit? Again, consider how judges make decisions. What is important in the affidavit is: what has the defendant done to make the plaintiff afraid? Let me repeat that. What has the defendant done to make the plaintiff afraid? After the papers have been submitted dot the judge, you go before the judge and the judge decides to grant or not to grant the restraining order, and then it’s scheduled for a ten-day hearing. And that’s the chance for the defendant to be served with a complaint, and we talked about the service. The police make the service. At the ten-day hearing, that’s the opportunity for both parties to state what they want to happen, and for the judge to talk about visits. 

Moving on, where do you go for child support custody and visitation? Probate court. Stop. Wait. Consider. Do I want to take out a case in probate and family court? If there hasn’t been any cases ever filed in probate and family court – again, I’m talking about paternity or child support or a divorce – then the decisions are up to the parties. Once a case is taken out in court, the decisions – the parties can say what they want, but the decision is made by the judge. Right now, hearings are for emergency matters only, in person; and emergency matters only, probably by telephone also, except for the initial restraining order in probate court, until at least June 1, 2020. The courts are open, but courthouses are closed to the public. If you get an emergency hearing, it will be a telephone hearing. 

What is an emergency hearing? Again, restraining orders are an emergency. But child support, it is our experience that child support is just not considered an emergency. Well, what should I do? Should I wait until after Covid to file anything? If you wait, then your case could take a long lot longer to go through the court. As it is, cases are being put over until after the already-scheduled cases – in other words, there are already cases scheduled on a given day, and the courts have been reluctant to pile on more cases on top of the ones that were already scheduled. So it could take many months, so the earlier you file, the shorter period of time it will take. 

In both paternity and divorce cases, service is necessary, and it’s generally by a sheriff or a constable. 

With child support, the Department of Revenue plays a very big role. The Department of Revenue is capable of taking out a case for child support, but the person wanting the child support is not the plaintiff – it’s the Department of Revenue that’s the plaintiff. However, they can initiate a case against the defendant for child support, and they’re now taking applications for service even during Covid, and they can file a complaint, even during Covid. DOR has attorneys who go into court, and if the person seeking support, again, if the person [who] is seeking support is there, they’re not the plaintiff, it’s the Department of Revenue attorneys who will be speaking, however the plaintiff will be there in court and will respond to any kind of issues. 

It’s not income-dependent. Anyone can make an application for services. Even if you’re high-income, the Department of Revenue can do it. 

Should I hire an attorney, or use the Department of Revenue? In Suffolk County, where I practice, Department of Revenue days, DOR days, are big. There are lines all over the courthouse. So you don’t get the individual attention that you would get in your case. But on the positive side, for a person seeking child support, DOR has access to the big computer. They can find income if the defendant is working under his own social security number. They can find other things – bank accounts, etc. 

Whatever you decide – attorney or no attorney, DOR-initiated or not – unless you reach an agreement, collection and enforcement will be through DOR, and by wage withholding, if possible. What does that mean? The Department of Revenue will do the collection. If it’s by wage withholding, that means that the defendant will never see that money – it will come directly out of his paycheck. If that’s not possible, the defendant has to go and pay through the Department of Revenue, which means that the person seeking child support never has to get involved with collecting the child support, and DOR will keep a record of how many payments have been made and what payments have been made. However, the Department of Revenue will not get involved unless you make an application for services. So even if you get a child support order yourself or through an attorney and the order says DOR will collect it, you have to make an application for services. So once again, this may be a little confusing. DOR could get involved in the start by taking out the complaint, or, if the complaint is taken out by your attorney or you, DOR is still probably going to be involved with the collection. 

How is child support and enforced? Financial statements are filled out by the parents. And then there’s a formula. However, the courts have the ability to deviate from the formula. That’s how child support is established. And it’s enforced by contempt. Contempt means that one party says the other party didn’t follow a court order, and the court can sanction that other party in various ways. 

Moving on to custody and visitation and parenting time, both in divorce and paternity cases. There are two kinds of divorce, a 1A and a 1B. In a 1A, that’s when the parties have been able to cooperate on filing together, and also have a separation agreement that works out all the details of the divorce. A 1B is where the parties didn’t do that; one party files and the other party can answer. Paternity testing – and a paternity test can be done by the Department to Revenue, but not now; Covid is preventing that from happening – obviously the testing can determine paternity, which carries rights and responsibilities.

Probate court in Covid times. The court is open for telephone calls. Salem in particular – we had a training and the registrar for Salem stressed that the court is open for telephone calls, the filing of new cases and pleadings. A pleading is a motion which asks the court to do something. So you need not only a complaint, but also a motion. A complaint by itself only tells the court, “This is what I would like in the case,” but it doesn’t say, “Please do this now.” It’s best, again, not to wait, because if you file a new case, you could be waiting a long time, and if you file now, you’ll be taken before people file after. 

How to file for an emergency hearing which is not a restraining order in probate and family court. Again, you have to have an underlying case  – even if it’s an emergency, you have to have a complaint, divorce, paternity, or a guardianship. That complaint needs to be served, but you can also get, possibly, an emergency order, even without service. You need an affidavit to let the court know why it’s an emergency, and a motion to let the court know what it is you want. Recall how judges make decisions: case law, statutes, and the facts of the case. 

And include your telephone and email address – and again, if you need that address impounded, you need to do a motion to impound your address, and not include any kind of information about contacting you on any court papers, because all court papers have to be given to the defendant. 

What should I ask for? Well, I went over a little bit about visitation, custody. There are two types of custody – well, four – one is legal and one is physical. Physical is who the child lives with, and legal is who makes the decisions for the child. That includes religious decisions, and school decisions, and medical decisions – the big decisions, not what the child is going to wear on a particular day, that’s whoever the child is with; those are little decisions. So there’s joint physical custody, that’s when the child lives with both parents, and there’s sole physical custody, that’s when the child lives with one parent. There’s joint legal custody, where the parents divide their time with the children, the children live with both parents, and sole legal custody, where one person makes the decisions. 

How does the court decide? Remember, how courts make decisions – it depends on whether or not the parents have a history of being able to cooperate and communicate about decisions. And that goes for the decision about physical custody and legal custody. And the other thing, of course, that you can ask for, in both paternity and divorce cases, is child support. So that concludes my presentation; I’ll turn it over to Susan.

Susan: Thank you, Sherry. That was a very interesting talk, and I think you managed to cover an awful lot of subjects in a brief time. That was a very good overview for us, and I think that will be very, very helpful to people. Two things that I’d like to remind people: you mentioned several agencies, and the links to those helpful agencies are on the Swampscott Library website, https://www.swampscottlibrary.org, and click on the Town News tab, and scroll down. You’ll find them all listed there. The other thing that I thought was really good in your talk is that you mentioned that people are not alone in this process. There are agencies out there. They can listen to what you have to say. They have experience. This is what they do, they’ve seen a lot of people go through this, and they can be helpful. So feel free to look at these agencies, at the links. The HAWC, especially, in Salem. The Northeast Legal Services, that was important, the Greater Boston Legal Services, and even the Mass.gov, and the Massachusetts Law Reform. So you’ll see the links, and they’re very helpful people. So take advantage of that help; it makes sense.

I guess the one last thing is, Sherry, I have to say, I really miss seeing you and all of our other patrons coming into the library. I can’t wait for the library to reopen. I don’t know when that will be, but I’m really looking forward to it. So I will say, thank you to our listeners, thank you, Sherry Smith, for sharing all this information with us, and I’ll say goodbye for now.