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Recently in Salon Mothers Who Think

Life of restraint
I have a restraining order on my ex. But he has a grip on my life.
By Spike Gillespie
[10/25/99]

Martha rules!
The world is her oyster stuffed with cilantro-garlic pesto.
By Jonathan Poletti
[10/22/99]

Freudian fear and cooked statistics
The recent media alert about sex-crazed "tweens" is mostly a lot of hoo-ha with naught behind it.
By Karen Houppert
[10/22/99]

Teen girls not in a rush
Four random but not randy "tween" girls talk about boobs, boys and sex -- and why they're not in a hurry to have any of it.
By Karen Houppert
[10/22/99]

Love me, love my guns
A shotgun tumbled from a closet and my husband drifted from my heart.
By Susan Straight
[10/21/99]

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A defendant who insists on a full evidentiary hearing can be forced to wait for months. In one case, the transcript shows, the judge denied an attorney's request to call witnesses who would dispute the complainant's story, saying, "I don't need a full-scale hearing ... I don't care about that." The judge also declared that the issue was not even "who's telling the truth," only whether he felt the woman was genuinely fearful.

While a restraining order is a civil remedy, its target is subject to criminal sanctions -- up to two and a half years of imprisonment -- for conduct that is not only normally legal but quite benign, like getting out of the car and holding the door for a child. (This includes contact that is clearly accidental, or even initiated by the purported victim: Even if you came over to the house at your ex-spouse's invitation, you don't have a legal excuse.)

Stewart has several other charges pending, mainly for failing to stay confined to his vehicle: for picking up the children on foot when his car had broken down, and for exiting his car during visitation exchanges, once when his son needed help with a package and another time when one of the boys stumbled and fell while running toward the car.

In 1994, in a somewhat similar case, Sal D'Amico, a father of three, was arrested and ordered into a batterers program because he got out of his car to pet the family dogs while picking up his kids for a visit. Five months later, he was fined nearly $600 for returning a telephone call from his son. (Like Stewart, D'Amico has never been criminally charged with assaulting his wife, whose claims of ongoing violent abuse were uncorroborated by any evidence.)

And those men are the lucky ones: Other fathers have been denied all contact with their children, or allowed to see them only in a supervised visitation center -- where, adding insult to injury, they must pay for the privilege.

In one of attorney Friend's recent cases, a woman claimed to be frightened by her ex-husband's search for real estate in the same town where she was moving with her children; the father, who previously had extensive visitation, was barred from all contact with the kids, even by telephone, for three weeks.

Boston-area therapist and hospital staff psychologist Abigail Maxton has a client who was not allowed to see his two children for about nine months after his ex-wife alleged, in the middle of divorce proceedings, that he had physically abused her and the children. ("The investigation consisted of a Department of Social Services worker talking to the wife and then talking to a neighbor who confirmed that she had heard loud voices," says Maxton.) The client could have only supervised visitation for the next two years, until the social worker who monitored the visits finally gave him a clean bill of health.

The situation in Massachusetts is not unique. In a 1996 column in Family Advocate, the journal of the family law section of the American Bar Association, Connecticut attorney Arnold Rutkin charged that many judges in his state approach protection orders as "a rubber-stamping exercise" and that the due process hearings held later "are usually a sham."

In Missouri, a survey of attorneys and judges for the Task Force on Gender and Justice in the early 1990s found many complaints that the "adult abuse" law was resulting in blatant disregard for due process and was commonly misused for "litigation strategy" and "harassment."

In New Jersey, appellate judges have expressed concern about frivolous restraining orders based on claims of verbal abuse: a man calling his estranged wife to tell her he would take "drastic measures" if she didn't pay the household bills -- by which he meant having the phone disconnected -- or a husband repeatedly saying to his wife that he no longer loved her and was going to get a divorce. After several such orders were overturned on appeal four years ago, the number of restraining orders issued statewide dropped by about 20 percent.

This trend, however, is likely to be reversed; the state Supreme Court overturned one of those appellate rulings in 1998, in Cesare vs. Cesare, and gave the trial courts broader latitude to rely on the complainant's subjective perception of a threat.

There also is some evidence to support the claims of fathers groups that courts show little regard for the civil rights of defendants when allegations of domestic abuse are involved. At a 1995 seminar for municipal judges, Judge Richard Russell of Ocean City, N.J., was caught on tape giving some startling advice.

"Your job is not to become concerned about the constitutional rights of the man that you're violating as you grant a restraining order," he said. "Throw him out on the street, give him the clothes on his back and tell him, see ya around ...The woman needs this protection because the statute granted her that protection ... They have declared domestic violence to be an evil in our society. So we don't have to worry about the rights."

Judge Russell's comments, printed in the New Jersey Law Journal, earned him a mild chiding from the Administrative Office of the Courts. By contrast, in Maine two years ago, Judge Alexander MacNichol was denied reappointment by Gov. Angus King after battered women's advocates complained that he was insensitive to women applying for restraining orders -- despite the lack of any evidence that his alleged insensitivity had put anybody in harm's way. Many court employees, male and female, who supported the judge said that he simply listened to both sides of the story.

But that is exactly what many battered women's advocates believe the courts shouldn't do. Some of them are quite candid about it.

Next page | An opportunity to make your ex very miserable