First, stay calm and quiet. No one has ever argued their way out of an arrest, but lots of people have argued their way into one. If the officer is wrong for stopping you, we can deal with that later. Police are permitted to ask for your identifying information. The sooner you provide it, the sooner you will be on your way. Also, if you do get arrested, refusing to provide identifying information will be used in the prosecutor’s bail argument. If the officer asks, “Do you know why I stopped you?” The correct answer is “No.” You are not a mind reader. Do not say anything else.
Again, stay calm and quiet. Do not do or say anything that could be construed as resistance. As unfair as it may seem, the law is quite clear that you are not entitled to resist, even if the arrest is unlawful. There are ways of dealing with unlawful arrest. Your main concern at this moment is to stay safe. Do not answer any questions, except for your identifying information. Do not volunteer any information. Once the handcuffs are on, virtually nothing you say will get them off. Tell the police that you want to speak to your attorney.
When and where you post bail depends upon when you are arrested.
If you are arrested during court hours (and your paperwork can be processed before the court closes), you will be brought to court for arraignment. The arraignment judge will decide whether you can be released on your own recognizance or whether you must post a cash bail.
If you are arrested outside of court hours, you will remain at the police station until a clerk-magistrate determines whether you will be released on your own recognizance or whether you must pay a cash bail. A clerk-magistrate is on call throughout the night and on weekends. If you are released on recognizance or you post bail before going to court, you will also have to pay a fee that goes directly to the clerk-magistrate. Currently, that fee is $40, in addition to whatever bail is imposed.
The Massachusetts bail statute requires release on personal recognizance (i.e., no cash bail), unless the accused poses a flight risk (i.e., is likely to fail to appear for court dates) or presents a danger to the community. The most important factors that a judge considers when deciding whether to impose bail are: whether you have failed to appear for court in the past; whether you are on probation; the seriousness of the offense with which you are charged, and the potential penalty; your employment status; and ties to the community (job, family, etc.). In determining the amount of bail to impose, a recent Massachusetts case held that the judge is required to consider the accused person’s ability to pay the bail amount. For one person, $100 cash bail might be a small amount; for another, $100 might as well be $1,000,000.
There are limited situations in which an accused can be held without the right to bail:
- When charged with 1st degree murder
- When arrested while released on bail or personal recognizance
- When arrested while on probation
- When the circumstances of the crime are such that the judge determines that no conditions of release can ensure the safety of the public or an individual
The short answer is: it depends. This area of the law is complex and is under almost constant scrutiny and revision by court decisions. There is an exception to the search warrant requirement known broadly as the “automobile exception.” This does not mean, however, that just because a car is involved, the police are free to search. If the police ask for your consent, you are free to say no. If the police begin a search of your vehicle without asking for consent, you should state affirmatively (but politely) that you are not consenting to the search.
The first thing that you should do if you believe that your child is struggling in school is to contact your child’s teacher. Seek a meeting to discuss your concerns and learn what the teacher has observed in class. You want to take this step as early in the school year as possible. You want to approach the teacher as a partner in your child’s education. Avoid confrontational language. The approach should always be “How can we work together to help my child learn?” Ask the teacher what is the easiest way to communicate and the best time to do so. Listen to the teacher’s suggestions, and also be prepared to share ideas that have worked at home or in previous classes. Leave the meeting with a plan and a date, within 2 – 3 weeks, to meet again and measure progress. If you are still concerned, move on to the next step.
At this point, you might consider whether your child has a learning disability which could be preventing the child from making effective educational progress. To find out if there is such a disability, you can refer your child for an initial evaluation for special education services. This referral should be addressed to the director of special education services for your school district, as that person is responsible for ensuring that the district meets the required deadlines and for coordinating the different types of testing. If you need assistance with the referral process, text me.
It is likely that the person who made this statement is confused. Some people (even some educators) mistakenly believe that a child must be a certain amount “behind” their peers academically in order to qualify for testing. This is not accurate. On the contrary, problems should be identified as soon as possible, so that the child does not fall too far behind and so that interventions can be put in place to maximize the child’s ability to benefit from the curriculum. Under Massachusetts and federal law, any parent can refer a child for testing. This referral should be addressed to the director of special education services for your school district, as that person is responsible for ensuring that the district meets the required deadlines and for coordinating the different types of testing. If you are getting resistance in your efforts to obtain testing for your child, text me.
Within five school days after receipt of your referral request, the school district will send you a notice and a consent form. This consent form should contain all of the different types of evaluations available. Types of evaluations include:
- An assessment of the child’s current academic progress
- A baseline IQ evaluation
- A physical assessment (which may include vision and hearing testing)
- A psychological assessment
- A neurological or neuropsychological assessment
You can consent to some, all, or none of these assessments. If you are just starting out in the process, I recommend requesting all of the testing. While some learning disabilities or conditions are fairly obvious (for example, dyslexia), others are more subtle (for example, processing difficulties) and are only detected with more in-depth neuropsychological testing. Also, many children have multiple learning disabilities or conditions. It is important to uncover and address all of the circumstances that affect the child’s education. If your child’s school district is unwilling to provide the testing you request, text me.
Generally, no. The first step that the director of special education will take after receiving a referral – from any source – is to send a notice and a consent form to the child’s parent. You are not required to consent. You can also consent to some types of testing and decline consent for other types. If, however, the school district believes strongly that an initial evaluation is necessary, federal law allows the district to seek mediation with the parent or to seek an order for an initial evaluation after a hearing. The parent is entitled to due process through either mediation or a hearing. If you have received a notice of referral for an evaluation, and you are unsure of your rights, text me.
Under Massachusetts law, the school district has 30 school days to provide or arrange for the evaluation of the student by a multidisciplinary team. The school district is required to ensure that appropriately credentialed and trained specialists administer all assessments. Each person who conducts an assessment is required to prepare a written summary of the assessment. All assessments are made available to the parent(s) at least two days prior to any meeting that is scheduled. If you have questions about assessments for your child, text me.
A TEAM meeting is just what it sounds like: a meeting of the team of people who decide the educational programming for your child. You are a critical part of your child’s team! You know your child better than anyone else. Yes, there will be experts on the team. The law requires that the team include teachers, a district representative (usually the special education director or designee), someone who can interpret test results (often the school guidance counselor), and any other knowledgeable individuals (often evaluators). You are the expert on your child. Your child’s TEAM will meet multiple times over the course of your child’s education. It is very likely that you will be the one team member who will remain on the team throughout the years.
At the TEAM meeting, each person will be given an opportunity to speak. The child’s teachers will discuss what they observe in the classroom, including the child’s academic strengths and weaknesses. The results of the various tests will be discussed. These results will often shed light on the cause for difficulties that the child is experiencing. The results might indicate that the child has ADHD, dyslexia, problems receiving or interpreting information, or underlying anxiety or depression, to name a few possibilities. The district special education director or designee will discuss interventions that are available to assist the child. In the best scenario, all of the team members agree on a course of action, which can be adopted in the form of an Individual Education Plan (IEP) or a Section 504 plan. The plan will then be formalized and sent to the parent for signature. Sometimes, however, there are disagreements concerning whether the child is eligible for special education services, or if so, what services should be provided. (This topic is discussed below.)
Even though you are the expert on your child, it can be intimidating for a parent to sit down in a room full of “experts” with special knowledge and advanced degrees. Many parents opt to bring an advocate or an attorney to the TEAM meetings with them. If you have questions about attending or preparing for a TEAM meeting, text me.
After the meeting, the school district is responsible for finalizing the proposed IEP or 504 Plan and sending it to the parent or guardian for signature. This regulations require that this task be accomplished “immediately,” so you should receive the document within a few days. You have 30 calendar days from the day you receive the document to accept or reject the recommendations.
As a parent, you have choices once you receive the proposed IEP or 504 Plan. You can choose accept the plan in full, accept part of the plan and reject the remainder, or reject the plan in its entirety. When a parent disputes the plan, there are mediation and hearing processes in place to assist the parties in reaching a resolution of the dispute. To preserve your child’s right to due process protections, you must make your written decision within 30 calendar days of the day you receive the proposed plan document. If you have concerns about the recommendations in the proposed IEP or 504 Plan, text me as soon as possible.
In Massachusetts, when a parent or guardian rejects the proposed IEP, in whole or in part, the doctrine of “stay put” applies. “Stay put” means just what it sounds like: your child will stay in the last agreed-upon educational setting until the dispute is settled.
No, as the parent, you have the right to invoke your child’s due process rights regardless of whether you are represented by an attorney. You will be expected, however, to comply with all of the deadlines required by state and federal laws and regulations and to follow all of the procedures prescribed by those laws and regulations. Success before the Bureau of Special Education Appeals depends, in part, on your compliance with these regulations and deadlines. The success rates of parents appealing to the BSEA with and without attorney representation varies from year to year.
In 2019, the BSEA issued 19 decisions after hearing. In 3 cases, the parents fully prevailed (were awarded all of the services they requested for their child). In 13 cases, the school district fully prevailed (the school district’s recommendation was ordered in full). In 1 case, there was “mixed relief,” meaning that each side won some issues and lost others. (Two other cases did not involve parents vs. school district.)
| Outcome of Hearing | Parents w/attorney | Parents w/o attorney |
| Parents fully prevailed |
2 |
1 |
| School district fully prevailed |
6 |
7 |
| Mixed relief |
0 |
1 |
If you need assistance with mediation or a BSEA appeal, text me.
It is a myth that students who are on an IEP or 504 Plan cannot be suspended or expelled from school. There are some special protections that apply, however, to such students. You should seek legal representation immediately upon being notified of serious discipline being imposed upon your child. You have only a short period of time, as little as 5 calendar days, to file a notice of appeal. You can request an extension of seven additional days, but even the request for an extension must be filed within the five day period. The laws and regulations concerning discipline of children with special needs are complex. I have created a Facebook Live presentation on the subject,
https://www.facebook.com/AttorneyChristineTetreault/videos/727128621168288
If you have received notification of suspension or other discipline for your child, text me right away.
A restraining order is a civil order, issued by a court in Massachusetts, which requires the person against whom the order is issued (the Defendant) to obey certain provisions, such as stay away from the person who requested the order (the Plaintiff), vacate a residence, surrender firearms, and so forth, for the protection of the Plaintiff from physical harm.
A restraining order, more formally known as an abuse prevention order, is generally issued under Massachusetts General Laws, c. 209A, and thus is often called simply a “209A order.” It protects a Plaintiff from abuse by a spouse or former spouse, a member or former member of the Plaintiff’s household, or someone with whom the Plaintiff is in, or was formerly in, a dating relationship. It is also sometimes referred to as a “domestic violence order.”
A harassment prevention order is also a civil order, but is issued under Massachusetts General Laws, c. 258E. The main difference is that a harassment prevention order does not require a familial or dating relationship to ever have existed. This statute was originally drafted to address a gap in the 209A statute that failed to protect a person who was being pursued “romantically” by a person with whom the Plaintiff never had, and did not want to have, a romantic relationship. Since its adoption, however, the harassment prevention order has been used in a wide variety of circumstances.
Restraining orders are issued by the Court. You will have to go to the court and fill out an application. You can go either to the court in the jurisdiction where you live, or to the court in the jurisdiction where the abuse occurred. Here is a link to help you figure out which court has jurisdiction of your case: https://www.mass.gov/orgs/district-court/locations?_page=1 Just type in your zip code and you will be directed to the correct court. For example, if you live in Agawam, the court with jurisdiction is Westfield District Court.
If you are married to the Defendant, or if you have an open case in the Probate Court, it is likely that you will be directed to apply at the Probate and Family Court in your county.
If you need to apply for a restraining order outside of court hours (generally, 8:30 A.M. – 4:30 P.M., Monday through Friday), you should contact your local police department. There is a judge on call during these hours who will hear applications on an emergency basis. Emergency applications are available through your local police department.
Strictly speaking, you do not need to bring anything with you. You will be asked to provide some information, however. It is a good idea to know the date of birth of the person against whom you are requesting the order, as well as his or her social security number, if possible. This information makes it easier for the court to obtain any criminal record that the person may have. You will also be asked for the home and work addresses of the person against whom you are seeking the restraining order. This information helps to locate the person and serve the restraining order.
You will be asked to complete an affidavit, describing the reasons that you are in fear of imminent bodily harm. You should be prepared to provide the court with dates on which incidents occurred. If you received injuries as a result of any incident, consider taking pictures of the injuries to show the judge. If you received medical treatment, consider bringing discharge summaries or receipts from the treatment.
Important: Do not go back into an unsafe situation to obtain evidence for the court.
You will complete an application telling the judge what type of protections you are seeking. Here is a link that will show you what the application looks like: https://www.mass.gov/doc/gl-c-209a-abuse-prevention-orderrestraining-order-application-forms/download
If you are at court, you will be instructed to go to a courtroom and wait for your case to be called. Court personnel will create a file and bring it into the courtroom. When the court is ready, the clerk will call your case, and you will be asked to stand in front of the judge. You will be sworn in. The judge might simply read your affidavit and ask you to affirm that your statements in the affidavit are true. Or the judge might ask you to describe why you wish to obtain a restraining order. In that case, you will have to state your reasons on the record. The judge might also ask you additional questions. If the Defendant is present, the judge will give him or her an opportunity to respond. The judge might ask questions of the Defendant as well. The judge will then decide whether to issue the restraining order.
If you are at the police station outside of court hours, the process will be similar, except that you will be talking to the judge over the phone. The Defendant will probably not be present.
What happens after the hearing depends upon the location of the hearing and who is present at the hearing. The judge has many options:
- If you are involved in an emergency request at the police station, the judge may either issue an emergency restraining order, or decline to issue it. If issued, an emergency restraining order usually expires at the close of business on the next day that the court is open. You will be instructed to go to the courthouse and renew your application. Then the hearing will occur as described above.
- If you are at the courthouse, and the Defendant is not present, the judge may issue a temporary restraining order (sometimes called an ex parte order), or decline to issue it. If the judge issues the temporary restraining order, another hearing will be scheduled to give the Defendant an opportunity to be heard. By law, this hearing must occur no later than 10 calendar days from the day that the order is issued. You will be instructed to return on the hearing date. If you do not appear at that hearing, the order will be terminated. You will receive a copy of the temporary restraining order. You should keep it on your person at all times. The court will instruct the appropriate police department to serve a copy of the restraining order upon the Defendant.
- If you are at the courthouse, and the Defendant is present, the judge will hold a hearing as described above. After hearing both parties, the judge may decide to issue the final restraining order with all of the protections you have requested, or may issue the order with only some of the restrictions that you have requested, or may decline to issue the order at all. If the judge issues an order, it will be in effect typically for a full year. The expiration date of the final order will appear on the second page. You will be asked to wait for a copy of the final order. You should keep the order on your person at all times. The defendant will be served with the final order by a court officer or other representative of the court.