By: Christopher A. Pearsall, RI Divorce and Family Law Attorney*
There are laws in virtually every state that protect the abused. In Rhode Island we have protection from abuse laws and it is important and appropriate that we have them.
However, they are not only laws but mindsets that are badly in need of revision and reconsideration.
These laws are codified in Chapter 15-15 of the Rhode Island General Laws § 15-15-1* et seq. and entitled "Domestic Abuse Prevention."
Rhode Island also has Chapter 15-15.1. The Uniform Interstate Enforcement of Domestic Violence Protection Orders Act which relates to the power within our state to seek the enforcement of Protection from Abuse Orders and Judgments made by foreign tribunals. For the sake of brevity, these are orders that are generally those issued by courts and tribunals other than the State of Rhode Island.
For this article though, let's concentrate are Rhode Island's own Domestic Abuse Prevention laws.
Rhode Island's Domestic Abuse Prevention laws cover abuse between a variety of persons. Specifically, to be within the jurisdiction of the family to court to hear the matter any acts considered "Domestic Abuse" must occur between 1) present or former family members, 2) parents, 3) stepparents, 4) persons who are or have been in either a substantive dating or engagement relationship within the past one year in which at least one of the persons is a minor. RI Gen. Laws Rhode Island General Laws § 15-15-1(2)
According to the reading of the statute abuse can occur between any combination of these particular classes of people. That covers quite a bit of ground as it relates to "family" that might be involved.
The statue goes on to describe what constitutes "domestic abuse."
Domestic Abuse is any one or more of the following actions perpetrated by a person in one of the four classes of people identified above:
(1) Attempting to cause or causing physical harm;
(2) Placing another in fear of imminent serious physical harm; or
(3) Causing another to engage involuntarily in sexual relations by force, threat of force, or duress.
(4) Stalking or cyberstalking
While the individual definitions of these actions causes serious problems in themselves, perhaps the most problematic part of the Domestic Abuse Protection statutes is the the process itself.
In essence, a Person files a Protection from Abuse Complaint to obtain an immediate Ex Parte Temporary Protection from Abuse Order a person only needs to swear to an affidavit that 1) identifies herself or himself as a member of one of the four classes of people identified above, and 2) allege anything that falls within the four categories of domestic abuse with enough convincing language (notice I did not say facts) that gives the judge a reasonable belief that domestic abuse is likely occur to the person if the Temporary Protection from Abuse Order is not issued.
An Ex Parte Protection from Abuse Order is essentially a restraining order that usually often gives the applicant 1) immediate exclusive use and possession of the home and all the things in it, 2) no contact from the party alleged to have abused them at home, work or elsewhere , 3) sole legal and physical custody of any minor children the parties may have together, and 4) relinquishing any firearms to local authorities. The Order may include other things depending upon what is requested and whether the judge granting such an Ex Parte Order deems it appropriate in his or her discretion.
It is, unfortunately, all too easy to obtain one of these Ex Parte Orders against a man. Notwithstanding assertions to the contrary, men are perceived as the stronger sex. Somehow, because we are considered the stronger sex has somehow equated into the fact that by being the stronger sex we are more prone to use that strength to abuse. There is, however, no legal, factual or scientific basis for making this leap in logic. However, realistically that is what happens.
In speaking with several police officers this year, I discovered that when they are called to a "domestic disturbance" they are taught to enter the situation with the presumption that the man is the aggressor. This approach is no different in the court system. If a woman presents a Complaint for a Protection from Abuse against a man with the accompanying affidavit signed under oath, the Family Court Judge is likely to grant it if it appears the items in the statute have been alleged and the judge forms a reasonable belief that domestic abuse is likely to continue to occur or that occur again if the Ex Parte Order is granted.
The Ex Parte Order can last for up to 21 days before the court hears the matter based solely on the allegations made by the complainant. For purposes of this article only, let us assume that the complainant is a woman since very few men, in fact, make such complaints for fear that they won't be taken seriously or that they will be viewed as less than men if they do so.
The Case of Donald's Turmoil
Donald and Teresa were married. Teresa moved into an apartment that was solely in Donald's name right after they got married. They had a son about 10 months later. Donald came home from work one day and was served with an Ex Parte Protection from Abuse Order from the Rhode Island Family Court. The police informed Donald that he had been ordered out of the house and he would be given time to get some of his things. The police escorted Donald through his own house to the couple's bedroom where he was given 15 minutes to stuff a few essentials into a garbage bag. Donald was lead outside and the officers told Teresa they would stay outside and wait until Donald had driven away.
Donald was in shock and stopped in a parking lot to read the paperwork. The order was specific. Donald was ordered to stay out of the home. He was ordered to have no contact with Teresa. Teresa was temporarily awarded sole legal and physical custody of their son. In three weeks there would be a hearing to find out if the order should be continued for up to 3 years.
Then Donald read Teresa's sworn statement. Teresa had alleged that Donald had placed her in fear for her life by getting into a rage and throwing a coffee cup at her head causing it to strike the wall and shatter into pieces all while she was holding their son. Teresa claimed that this put her in fear for her life and the life of their child.
Donald was incredulous. Teresa had lied. Not a single allegation was true. Donald did not understand why Teresa was doing this. Donald had some clothes and toiletries and that was it.
He couldn't contact Teresa. He couldn't go home. He had no relatives or friends that he could stay with or call on for help. He had no way to make arrangements to see their two (2) year old son without breaking the Ex Parte Order.
So Donald did the only thing he could do. He slept in his car and clean up as best he could in the bathroom at work. Donald got paid and used the little money he had to get a lawyer thinking it was going to be just one hearing. On the day of the court proceedings, Teresa showed up saying she needed time to get a lawyer. Donald's attorney objected. The judge would not hear the case and continued the hearing another month to Teresa to get an attorney.
Fast forward a month. Donald had still been living in his car and cleaning up at work. Teresa got a lawyer just before the court date at no fee to her. However, now Teresa's attorney needed time to meet with her and to get up to speed on the case so the attorney asked for another continuance. Donald's attorney vehemently objected stating that he was being denied his due process rights as well as access to his son and his home. The judge granted 1 hour per week of supervised visitation for Donald at the courthouse as if he were some criminal. The judge also ordered Donald to continue paying the rent for the apartment until the court could hear the matter regarding child support. All of this was over the objections of Donald's attorney. The judge gave Teresa's lawyer a 5 week continuance.
During the ensuing 5 weeks Donald continued to live in his car as before. Out of the 5 weeks of visits that Donald was supposed to receive, he received 2 when Teresa claimed that she could find no transportation to get the baby to the courthouse the other (3) times.
Fast forward 3 months.... Donald had been ordered to pay child support without the underlying protection from abuse matter being heard. Again Donald's attorney had objected. Donald had seen his son a total of 10 hours in 6 months. Donald had lived in his car for 6 months because Teresa insisted on pressing the Protection from Abuse Complaint. Each and every time there was an excuse by Teresa or her attorney why the matter could not be heard. Either Teresa was sick, there was a death in the family, she didn't have a ride to court or the Attorney was on vacation. Still the court denied Donald his opportunity to testify or to try to prove that no Domestic Abuse was committed. Each time either Donald or his attorney tried to speak about the substance of the case the court refused to let them speak. Donald was served with divorce papers immediately after one of his supervised visits with his son.
Fast forward again to 6 months, Donald and his lawyer went into court. 5 continuances had already been granted to Teresa and her lawyer. This time, Teresa's lawyer stated that income documents had been subpoenaed from Donald's employer but that his employer had not come in with the documents so a continuance was needed since child support depended upon them. Donald's lawyer objected angrily. The judge was frustrated. However, the judge and was going to grant yet another continuance.
This time Donald's lawyer wasn't going to be silenced. Donald's attorney told the court how they had intended from the very start to prove that this court had been duped. We are prepared to give evidence of how Teresa lied on her affidavit, that she was having an affair, that she had moved her boyfriend into the house within hours after Donald had been forced out of the house by the Ex Parte Order.
The judge told Donald's attorney to stop or he would be found in contempt. The attorney didn't stop. He continued to describe how the court had helped Teresa because preventing the truth from coming out sooner allowed the boyfriend live in the apartment at Donald's expense. The attorney quickly described how this boyfriend had been "playing daddy" for the last 6 months while the court kept buying the excuses given by Teresa and her attorney. Donald's attorney expressed his outrage at how the court was denying his client his home AND his right to be the child's father AND particularly his client's right to be heard on this matter without reasonable due process.
Teresa's lawyer immediately asked the judge to speak with Teresa outside the courtroom. The judge called for a 15 minute court recess.
Donald and his attorney took a seat.
Twenty minutes later the judge came back out and Teresa and her lawyer came back in.
Teresa voluntarily dropped her Complaint for the Protection from Abuse. Teresa asked that Donald not return to the apartment until tomorrow. Donald agreed.
The next day Donald returned to the apartment. Everything was gone. Beds, big screen television, appliances, all of their son's things. He was left his clothes, one bureau a livingroom area rug. There was junk and pizza boxes strewn about the apartment, a few broken windows and several holes made in the walls. Donald had no idea where his son was.
If you have read this story, excellent. Now you are enlightened. This is not dramatized. In fact, it is minimalized because the entire story would be too long for most people to endure personally let alone to read.
The Protection from Domestic Abuse laws are too easily manipulated. They work on the presumption that when people swear under oath to the court that they will be honest and tell the truth, in context, so that the court can do the right thing for truly abused men and women. I'm an optimist at my center, but I realistically know that people lie every day. Many people lie on their taxes. Some lie when they are angry. Some lie just to get their way or because they have an ulterior motive. To many people it doesn't matter whether the lie is made before a clerk, judge or a notary.
This story is not out of the ordinary. All you have to do is lie on the affidavit to the court and for at least 3 weeks you can get a person thrown out of their own home, you keep them away from their children, you can keep them from all their possessions. In the end, even if you prove that the story they have given the court is fabricated, in 28 years in law in the courts of this state as well as Massachusetts, Vermont and New Hampshire I have not once seen a single person punished for committing perjury even though it is a crime.
Perjury in these types of cases is the most aggregious I can imagine. You are denied your home, your children, your property .... and all it takes is 3 to 5 sentences of lies phrased in just the right way. This does such a tremendous disservice to the people who are truly abused and who these laws were intended to serve and protect.
Most of all I would like to caution men. Protection from Domestic Abuse Complaints are the most frequently used tool of women who want to maintain control in a divorce and sometimes in other proceedings. By filing for this first it allows them to gain both control of the house, belongings and children and to taint the court into believing that the male spouse is an abuser. If a judge were to be tainted in this way, might a judge believe that a man who could commit domestic abuse would have no problem lying to the court?
Yet aren't we innocent until proven guilty you might think. Not under the Protection from Domestic Abuse Laws.
So is it possible to taint a judge by presenting a man as an abuser in such a way?
Hey, anyone can be tainted!