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HOUSE DOCKET, NO. 1407         FILED ON: 1/20/2011

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1283

 

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

William N. Brownsberger, (BY REQUEST)

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
              Court assembled:

              The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act further amending Chapter 209A.

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PETITION OF:

 

Name:

District/Address:

Dwight Doane

9 Agassiz Ave.


HOUSE DOCKET, NO. 1407        FILED ON: 1/20/2011

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1283

By Mr. Brownsberger of Belmont (by request), a petition (accompanied by bill, House, No. 1283) of Dwight Doane relative to domestic relations and abuse prevention.  The Judiciary. 


The Commonwealth of Massachusetts
 

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In the Year Two Thousand Eleven

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An Act further amending Chapter 209A.
 

              Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

              Chapter 209A of the General Laws shall be amended as follows:

              Section 1(b) The following word (PLACING ) is to be removed and replaced with the word (THREATENING) at the beginning of the sentence and before " another in fear of imminent serious physical harm"

              (b) placing another in fear of imminent serious physical harm; (current )

              (B) Threatening another with imminent serious physical harm (proposed)

              Section 2 Venue The following words shall be deleted "probate and family or"

              Proceedings under this chapter shall be filed, heard and determined in the superior court department or the Boston municipal court department or respective divisions of the district court departments having venue over the plaintiff’s residence. If the plaintiff has left a residence or household to avoid abuse, such plaintiff shall have the option of commencing an action in the court having venue over such prior residence or household, or in the court having venue over the present residence or household.

              Section 3. Insert the words in the first paragraph ( provided there is clear and convincing evidence) after the words "requesting protection from such abuse" and before the words ‘including, but not limited to, the following orders":

              Change to be as rewritten below

              A person suffering from abuse from an adult or minor family or household member may file a complaint in the court requesting protection from such abuse ( provided there is clear and convincing evidence) , including, but not limited to, the following orders:

              Section 3 PARAGRAPH TO BE ADDED :

              Any false allegations will result in the case against the

              accuser BEING REFERRED to THE attorney general or A district

              attorney for the charge of perjury. Any person making false claims under this section SHALL pay the costs of the hearing(s) AND any attorney's feed incurred to the accused.

              Section 4. (Note : Items in Red are to be inserted )

              The following is to be inserted into the first sentence of the first paragraph after the words "under this chapter" and before the words "the court may enter such temporary orders"

               

              Upon the filing of a complaint under this chapter and giving clear and convincing evidence of abuse, the court may enter such temporary orders as it deems necessary to protect a plaintiff from abuse, including relief as provided in section three. Such relief shall not be contingent upon the filing of a complaint for divorce, separate support, or paternity action.

              Section 3(d) remove a preponderance of the evidence that a pattern And replace with clear and convincing evidence after the words " family court a finding by such court by" and before " or serious incident of abuse"

              remove preponderance and replace with clear and convincing evidence after the words " Such presumption may be rebutted by" and before "of the evidence that such custody"

              Change to be as rewritten below

              (d) awarding the plaintiff temporary custody of a minor child; provided, however, that in any case brought in the probate and family court a finding by such court by a preponderance of the evidence that a pattern (clear and convincing evidence ) or serious incident of abuse, as defined in section 31A of chapter 208, toward a parent or child has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent. Such presumption may be rebutted by a preponderance (clear and convincing evidence ) of the evidence that such custody award is in the best interests of the child. For the purposes of this section, an "abusive parent" shall mean a parent who has committed a pattern of abuse or a serious incident of abuse;

              Section 3. Remove the words " plaintiff nor the plaintiff’s attorney" and replace with " parties nor their attorneys " after the words "No filing fee shall be charged for the filing of the complaint. Neither" and before " shall be charged for certified copies of any orders entered by the court, or any copies of the file reasonably required for future court action or as a result of the loss or destruction of plaintiff’s copies. "

              Change to be as rewritten below

               No filing fee shall be charged for the filing of the complaint. Neither parties nor their attorneys shall be charged for certified copies of any orders entered by the court, or any copies of the file reasonably required for future court action or as a result of the loss or destruction of plaintiff’s copies.

               

               Section 4. PARAGRAPH TO BE ADDED

              If the plaintiff does not appear at any hearing with out reasonable cause and notice to the court with in ten days after the hearing the 209A order shall be automatically vacated 14 days from the hearing date. Should the plaintiff not appear for reasonable causes and notifies the court (personally or through an agent) the court shall notify the defendant of the new hearing date to be held within 45 days of the original hearing date (hearing may not be extended unless the plaintiff is hospitalized for an extended period of time (30 days or more).

              Section 6. (7) replace the words "The victim" and replace it with "Both parties"

              So the sentence shall read :

               Both parties shall be provided a copy of the full incident report at no cost upon request to the appropriate law enforcement department.

               Section 6. Paragraph 2

              shall be modified by adding the words "along with a copy of the affidavit filed with the court" after the words "complaint and summons" and before the words " forthwith to the appropriate law enforcement "

              And inserting the words "and Affidavit" after the words "order and summons" and before the words "and notice of any suspension "

              So that the second paragraph reads as follows

              Whenever the court orders under sections eighteen, thirty-four B, and thirty-four C of chapter two hundred and eight, section thirty-two of chapter two hundred and nine, sections three, four and five of this chapter, or sections fifteen and twenty of chapter two hundred and nine C, the defendant to vacate, refrain from abusing the plaintiff or to have no contact with the plaintiff or the plaintiff’s minor child, the register or clerk-magistrate shall transmit two certified copies of each such order and one copy of the complaint and summons "along with a copy of the affidavit filed with the court" forthwith to the appropriate law enforcement agency which, unless otherwise ordered by the court, shall serve one copy of each order upon the defendant, together with a copy of the complaint, order and summons "and Affidavit" and notice of any suspension or surrender ordered pursuant to section three B of this chapter. The law enforcement agency shall promptly make its return of service to the court.

               

             

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