Chris Kennedy - Victim of a Family Court System That is Out of Control
THE CONNECTICUT LAW TRIBUNE
Monday, July 24, 2006
Ellington father Christopher Kennedy, photographed with his attorney Susan Phillips after his Supreme Court oral argument, has won the right to appeal a family violence restraining order issued against him.
Supremes: Restraining Orders Appealable
By THOMAS B. SCHEFFEY
For Ellington fathers' rights activist Christopher Kennedy, his ex-wife's family violence restraining order presented a Catch-22. When he attempted to challenge it, the state Appellate Court deemed the issue moot, because the six-month order had expired.
On July 18, the state Supreme Court reversed that decision, allowing a family violence restraining order to be appealed due to the permanent stigma and other "prejudicial collateral consequences" that such a decree can carry.
Kennedy, an engineer, was divorced from Leanna Putman in 2002, and she had custody of their son and two daughters. On New Year's Eve 2004, during a scheduled visitation, Kennedy reportedly had a physical altercation with his 15-year-old son and threw the youth to the ground. Putman promptly got an ex parte restraining order from Superior Court Judge Jonathan Kaplan forbidding harassment and denying Kennedy visitation.
Two weeks later, the order was modified to allow visitation with his daughters. In March of 2005, Putman obtained another ex parte order from Kaplan to restrain Kennedy from visiting his daughters or entering their schools. Superior Court Judge Edward C. Graziani and Judge Trial Referee Lawrence C. Klaczak extended that order by six months.
After the Appellate Court loss, Kennedy retained New London solo Susan Phillips. Phillips argued the case should be reviewable, since the underlying issue was "capable of repetition yet evading review." Supreme Court Justice Flemming L. Norcott Jr., writing for the unanimous court, ruled for Kennedy on a different theory.
The high court likened Kennedy to the defendant in the 2002 state Supreme Court case of State v. McElveen, who claimed he was wrongfully imprisoned for a probation violation. Even though McElveen was out of prison by the time his case received appellate review, his prison record would be stigmatizing. McElveen deserved a chance to clear his name, the Supreme Court concluded, and so did Kennedy.
A domestic violence restraining order requires a judge to find a "continuous threat of present physical pain or physical injury" to the applicant. The potential damage to a person's reputation is compounded by a statutory requirement that the order be disseminated to various law enforcement agencies. Further-more, as Kennedy argued, the existence of a past restraining order is available to the state Department of Children and Families and to the courts to make determinations of custody and visitation.
Phillips, Kennedy's appellate lawyer, said she raised the issues of damage to reputation and a negative legal record under the "public importance" element of the capable-of-repetition-yet-evading-review doctrine. She praised the Supreme Court's research and analysis that placed the lingering "collateral consequences" as a stand-alone basis to allow appeals of domestic violence restraining orders. "I actually think their rationale was better," Phillips said in an interview.
Kennedy said he was "elated" with the decision. "But it's a shame a father has to go to the Supreme Court to get to see his kids," he said. Currently, Kennedy gets to see his daughters one hour a week at a commercial "Kidsafe" facility for $45 an hour, under the watchful lens of a video camera, he added. "There were no allegations of any physical violence against my ex, or my daughters," said Kennedy, who hasn't seen his 17-year-old son for three years.
Putman's lawyer is Susan Boyan, of Courtney, Boyan & Foran in Vernon. Boyan said Putman chose not to brief or argue beyond the Appellate Court level. The decision, while "legally interesting," has no practical effect on Putman because the orders are expired, Boyan said.
Meriden electrician Patrick Kearney, who is active with the Divorced Men's Association and other fathers' rights groups, praised the decision as long overdue. "I've lost two houses and two trucks" underestimating the consequences of violating a restraining order, Kearney said. He recently finished two years in prison for criminal trespass, he noted. "These orders are given out too easily, and up until now, there has been no way to appeal, so you're stuck forever with the label of being a domestic violence offender."
Kearney is backing a legislative measure to create "early counseling intervention" through the courts' family services to educate and emphasize the seriousness of domestic violence restraining orders. "When she says, 'Oh, come on over, it's all right,' it really isn't," Kearney said. o