A Balanced Perspective: Domestic Restraining Orders (G.L. 209A)

The process of obtaining or defending a restraining order is complicated.  Law firms in Massachusetts would advise you to seek the assistance of experienced counsel.

If used properly, a restraining order can be a valuable tool to protect a victim of abuse. The Abuse Prevention Act, M.G.L. provides a statutory mechanism, Chapter 209A (Restraining Order”) for those suffering from domestic abuse to seek legal recourse. The law is designed to stop and prevent abuse from occurring in the future.

If the restraining order is misused, it may be damaging for the accused.  It is important to look at the restraining order from both the plaintiff’s and the defendant’s perspective.

A Plaintiff’s Perspective

 

Eligibility

To be eligible for a restraining order, a plaintiff must show an intimate or familial relationship with the defen­dant, including marriage, substantive dating, cohabitation, relation by blood or marriage, or having a child together.  Plaintiffs who never knew their perpetrators, or knew them only marginally are ineligible to file for a restraining order.  Law firms in Massachusetts can pro­vide these and other victims with legal recourse using another statutory mechanism enacted by the legislature: An Act Relative to Harassment Prevention Orders, M.G.L. 258E, in 2010.  See http://massachusetts-employment-defense-lawyer.com/

Next Steps

If a plaintiff’s relationship with the defendant meets the restraining order criteria, he/she must complete the petition, prepare an affidavit in support of the petition, and then appear before a judge.  A hearing may be held without notice (“Ex Parte Hearing”) to the defendant only when there is a substantial likelihood of immediate danger of abuse.  Ex parte orders should last only until a full hearing can be scheduled with the defendant present, and, in any event, no more than ten court business days after the ex parte hearing.  The full hearing in which both parties appear is an adversarial proceeding where both parties are allowed to present evidence.

The Hearing

During the hearing with both parties present, the plaintiff must show that the defendant has caused or attempted to cause physical harm, placed him/her in fear of imminent serious physical harm or caused him/her to engage involuntarily in sexual relations by force, threat of force, or duress.  This is typically done through testimony of the plaintiff and possibly other witnesses.  Because the defendant has the right to testify, introduce evidence and cross-examine the plaintiff, law firms in Massachusetts would assist the plaintiff in preparing for the hearing. It is recommended that the plaintiff be represented by experienced counsel at this point.

The Order

The Judge may issue an Order which states any of the following: do not abuse the plaintiff, do not contact the plaintiff, vacate and remain away from the plaintiff’s household and workplace, pay restitution for directly-resulting losses, pay temporary support for the plaintiff and/or child, award temporary custody of a minor child, surrender firearms, gun licenses and FID cards. The plaintiff may request all or only some of these provisions depending on the specific need for protection.  If the defendant violates the restraining order, the plaintiff must call the police immediately.

How to Start the Process

A restraining order may be obtained at the Superior Court, District Court or Probate & Family Court in the community in which the plaintiff lives. An emergency order may be obtained through any police department after court hours or on weekends.

A Defendant’s Perspective

For those who are, in fact, suffering from domestic violence, a restraining order is a vital tool. But what legal recourse exists for individuals who are falsely accused?

False Accusations

Unfortunately, the restraining order process can be manipulated by some plaintiffs who falsely accuse defendants of various degrees of abuse, resulting in the issuance of a restraining order against an innocent defendant.  For example, restraining orders are occasionally used as leverage in divorce disputes, custody disputes and property disputes disregarding the intended purpose behind restraining orders – to protect true victims of abuse.  Although a restraining order is a civil order, it has criminal penalties and will appear on the defendant’s record.  Further, a restraining order places significant restrictions on the defendant’s freedom and may limit or terminate any contact with the defendant’s children.

A Defendant’s Rights

A defendant is not without rights and may contest a claim of abuse.  The named defendant is entitled to a hearing, including an evidentiary hearing at which a defendant can present testimony and documentary evidence.  If a defendant has a pending criminal case or has the possibility of being charged with a crime, it is not advisable to testify at the restraining order hearing.  The defendant cannot be compelled to provide incriminating evidence against him or herself.

Legal Representation

While a restraining order is pending, the defendant must be extremely careful not to violate the order as the consequences include arrest and possible jail time.  If a plaintiff seeks and/or obtains a restraining order in bad faith, a defendant needs experienced legal representation to properly defend against the allegations.

If you have any questions, please contact Attorney Diane D’Amico directly at ddamico@rubinrudman.com (617) 330-7072.