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Safety in an Unsafe Relationship

Domestic abuse has been a topic amongst my family law clients long before Ray Rice renewed it as a nationals conversation. I often have consultations with potential clients who come to me for a “simple” divorce and proceed to tell me horrific stories of abuse. For some clients, it’s physical abuse, but for others, it is emotional, verbal, or financial abuse. The individuals are from all races, religions, social economic status, and genders.

My first inquiry in these situations is always related to imminent fear of bodily injury. If such afar exists, a Restraining Order (“209a”) may be appropriate. A 209a is a Court Order that states what parties may or may not do. Typical terms include, but are not limited to, an abuser not contacting a victim, or the friends and family of the victim, by phone, in person, by email, or text; abuser must remain a specific distance from the home and workplace of the victim, and the abuser may not possess any weapons.

Laws regarding 209a vary from state to state. In Massachusetts, the District and Probate & Family Courts allow for walk in requests and have jurisdiction to order a 209a where appropriate. Temporary Orders are usually given for a short period, often ten (10) days, but all Orders have the potential to be extended or made permanent.

What happens to my potential clients? Some never call again and I always hope that they have retained alternative counsel, not become a statistic. Some return months or years later, saying, “I can’t be a victim anymore” or “I have to do this for my child.” It takes courage to leave, because the scariest time for a victim is often the six (6) months following. They are often still terrified of their abusers. They are often isolated and broke. They often have a long history of police visits to their home. They are almost always afraid of what will happen next.

If you or someone that you know is in abusive relationship, please encourage them to seek legal assistance or to call RESPOND @ 617 623-5900 or click here

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Text, Tinder, and Twitter….oh my….

Like so many New Englanders, I am excited about the Patriots’ recent Super Bowl win. I actually thought of how to integrate the win into my monthly newsletter. Deflategate was an obvious topic, but it’s been over discussed by every reporter and person in the country. Then, out of nowhere, a photo of fan favorite Julian Edelman started spreading quicker than a Gronk spike. I am not going to speculate whether the photograph was authentic or ponder the ethical issues involved with posting it, but it did get me thinking about the exposure that we all have in our digitally obsessed world.

So many people innocently put information online.We all  post funny stories, cartoons, and photos. We think that our social media  accounts are protected, because we have customized privacy settings and security software. We see the photos that are circulated on Facebook, trying to provide a lesson to young students about how quickly people can “borrow” your content, but think our photos are safe, because of those protections.

The digital world offers less protection than most of us feel comfortable admitting.  Sometimes, it results from the innocent time when your friend copied your photo from Twitter,  to show someone else how cute your children are,  but, somehow, the photo travels into the wrong hands. What happens when a hacker or child perpetrator gets hold of the photo? How would you react if the photo is used for advertising without your knowledge or consent?

Often, potential employers actively search online for “dirt” on perspective employees. For every photo or statement that an employer examines, someone  is interpreting  what they think it says about the character and personality  of  the potential employee. How does a hiring manager react when all they find are photos of you with cocktails in your hand or constant posting during traditional work hours? Do they interpret it differently depending on your work history?

What is rarely discussed  is the privacy of electronic messaging. Many people realize that a text, instant message, or email can be forwarded or copied; however, what a lot of people don’t realize is that the contents of the text, instant message, or email can be found long after it is “deleted.”

In my world, everything is potential evidence. Photos, text messages,  and social media  posts can be used to prove my client’s case or discredit the other side’s argument. Your text and emails are proof of what you say to someone else. As the often quoted Miranda Rights suggest, “anything you say,  can and will be used against you,” under Massachusetts Rules of Evidence Section 901

When deciding if electronic evidence can be used in a case, the Court considers five (5) factors:

  1. Is the electronic evidence relevant to the case?  If you are getting a divorce and your spouse is claiming infidelity, a photo posted online or text, of you with a friend at a Red Sox game,  could be relevant if your spouse suspects that the other person is your new partner.  Moreover, mere membership or profile on a dating website, such as Tinder,  could support that you are unfaithful (or trying to be).
  2. Can it pass the test of authenticity?  If a witness confirms that the evidence is real and accurate, it will likely be allowed to either by the Court to support or discredit your case  Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359 (2014).If someone, who has first hand or expert knowledge, testifies that it was taken on April 10,2014,  at the Red Sox/ Yankees game at Fenway, their statement will likely authenticate the photo as real and accurate.
  3. Is it hearsay? When information is received from other people that cannot be adequately confirmed, it is hearsay. Unless an exception  to the hearsay rule applies, the information cannot be used as evidence. If you heard from Alex that Jeff committed a crime, it is probably hearsay; however, if you witness the crime being committed, your description of the event is not hearsay.
  4. Is the electronic evidence the “best evidence?” If the original document is no longer available, but a copy is, it will likely be allowed by the Judge. If a text conversation is deleted,  but somebody saved a screen shot, a judge would likely accept a copy of it as best evidence.
  5. Is the probative value of the electronic evidence outweighed by unfair prejudice?  If the evidence makes a reasonable person wonder “who DOES  that,” it is likely prejudicial.  If you are engaged in a child custody dispute, where safety is an issue, a text photo of you, happily playing on the swings with your delightful child, is usually wonderful and suggests good parenting. If the photo is of you, with your five year old child,  at a shooting range and the child is firing a weapon,  it would likely cause an intense reaction from most people; however, that prejudice would be outweighed by value of what the  photo is likely being used to prove, such as recklessness.

What should this mean to you? Be careful of what you put online; those online rants about your job or significant other could be a problem later and in an unplanned way. Be careful of how you appear in photos; perspective employers understand that you like to have fun, but do not want to hire someone who is irresponsible. Be careful of what you write in a text, email, or instant message; the words that you write are powerful and speak volumes about who you are, what you do, and how you think.

As always, please feel free to contact me for additional information or a consultation. Please feel free to send this newsletter to anyone who may be interested. Receipt of same is not intended to offer specific legal advise or create an attorney-client relationship.

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Hello, Daddy!

I remember when we brought our first child home. It was a time of joy, excitement, and very little sleep. We were fortunate that my husband was able to take a week or so off from work. I remember feeling a bit envious we my husband returned to work, but only because it meant that I would volunteer to do feedings after midnight, so that he could be relatively “awake” when he went to the office.

Starting in April, 2015,  new fathers will have an opportunity to take up to eight (8) weeks of paternity leave. Massachusetts General Laws 149, Section 105D, as amended by St. 2014 c. 484 provides eight (8) weeks of paternal leave for the purpose of giving birth, placement in the home of a child under the age of 18, or the placement of a child under the age of 23 if that child has mental or physical disabilities.

The newly amended law provides an amazing opportunity for all fathers. The men that I have spoken about this with have told me that they would be unlikely to take such a significant amount of time off from work; however, they seemed excited that it would give them potential flexibility.

Fathers must satisfy simple criteria to qualify for paternal leave. First, the father must have worked at the company for at least three (3) months or the probationary period of employment. Second, the father must tell the employer of his anticipated departure with at least two (2) weeks notice and his expectation to return.

Of course, there is are exceptions within the new law. The most significant areas of concern are relate to the work environment and are intended to protect the employer. The size of the company dictates whether the new father is able to take advantage of the new law. Similarly, where both parents work for the same employer, the total time of leave is limited to eight (8) weeks.

As my grandmother always says, “A new baby to love is always a good problem.” Under the new laws, new dads have a baby to love and can now decide whether they want to take more time to love that baby from their home. I think that my grandmother would consider that an excellent problem.

Please feel free to share this post with anyone who may be interested. Receipt of same is not intended to offer specific legal advise or create an attorney-client relationship.

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