Domestic Restraining Orders
It has become more and more common for citizens to call upon the courts to provide protections for them and, in many cases, to prosecute those accused of committing crimes. If a crime has not been committed or the victim isn’t interested in pressing criminal charges, the court still can issue protections. In many cases, a person has committed a crime and is being prosecuted, and the victim wants or needs the additional protection of a restraining order.
Massachusetts General Laws, Chapter 209A, contains the rules concerning the issuance and enforcement of a Domestic Restraining Order, often referred to as a “209A” order.
Who Can Seek a 209A Restraining Order?
The law limits this order to persons who:
- Are or were married to each other,
- Are or were living together,
- Are or were related by blood or marriage,
- Have a child together, or
- Are in a “substantive dating relationship.”
How Do I Initiate a 209A Restraining Order?
You (the “plaintiff”) have to demonstrate to the judge with a “preponderance of evidence” that you are “suffering from abuse” by the defendant. Abuse is defined by the statute as:
- Attempting to cause or causing physical harm;
- Placing the person in fear of imminent serious physical harm; or
- Causing the person to engage involuntarily in sexual relations by force, threats or duress.
What is the Process for Obtaining a Restraining Order?
If you’re in fear of harm or violence against yourself, speak with a judge immediately without giving any type of notice to the defendant. The judge determines whether to issue a temporary emergency order or not. You can go to the police station local to where the abuse occurred or your residence. In either case, judges are on call to assist.
You fill out paperwork, called a complaint, which provides basic information about yourself and the person against whom you seek the order. Next, you file an affidavit which details sufficient facts for the court to determine the nature of your relationship (i.e., married, living together, boyfriend, blood relative, etc.) and whether you are suffering from abuse at the hands of the defendant.
Where to File
If it is during court hours (Monday through Friday, 8:30 am – 4:30 pm, excluding holidays), file the papers to be heard by a judge in the court having jurisdiction over the location where the abuse occurred or your residence. This is usually the local District Court, but you can file in Superior Court or Probate and Family Court as well. Outside of court hours, you can go to the police station local to where the abuse occurred or your residence. In either case, judges are on call to assist. Further hearings take place in the appropriate court.
If the judge issues the Restraining Order, police serve the order upon the defendant as soon as possible. The court hearing date is scheduled for not more than 10 court business days after the issuance of the temporary order, at which time the defendant can have their full hearing to challenge whether the restraining order should continue. If you do not appear at this hearing, your temporary restraining order will be terminated. If the defendant does not appear at this hearing, your temporary order likely will continue for up to one year.
The court won’t provide you with a lawyer so you should bring your own lawyer. The defendant can also bring a lawyer. You have the right to have witnesses testify on your behalf and submit other evidence (e.g., emails, texts, voicemails, photos, medical records, etc.), as does the defendant. The other party or their lawyer may cross examine or question your witnesses. The judge overseeing the hearing has wide discretion to limit cross examination and what evidence they deem admissible.
At the conclusion of the hearing, if the judge finds that the plaintiff is “suffering from abuse,” the judge can extend the order as it was issued for up to one year. The judge also may modify the terms of the order to either add or delete certain provisions of the order. If the judge finds that you have not demonstrated you are suffering from abuse, your restraining order will be terminated.
How Does a Domestic 209A Restraining Order Protect Me?
The judge who finds that the person has demonstrated abuse can make any combination of the following orders:
- Stop or refrain from abuse
- Refrain from contacting you in any way, including in person; by telephone, mail, email or social media; or through a third party, etc.
- Refrain from abuse and/or contact with your minor children
- Move from your home (if you live together)
- Surrender keys to home
- Stay away from your home, work or school
- Temporarily give up custody of minor children (if any)
- Temporarily pay support to you and/or your minor children, if there is a legal support obligation
- Pay out-of-pocket expenses related to the abuse, including lost wages, medical expenses, moving expenses, reasonable attorney’s fees, and replacement cost of broken items, such as door locks, windows, etc.
- Surrender firearms licenses and firearms.
What Happens if I Violate the Restraining Order?
It is important to understand that while this is considered a civil, not criminal, matter your violation of a 209A restraining order is a crime. Though not criminal, the court maintains a parallel record for anyone who has had a domestic restraining order served, whether it was for only a day or up to a year, and this information will be part of your permanent record. If convicted of violating the restraining order, you can face up to 2 ½ years in the house of correction, fines up to $5,000 and be made to complete a 44-week, certified, batterer’s-intervention course. Further, if the court places you on probation, the court may order you to wear a GPS monitoring bracelet and to stay away from certain areas, known as “exclusion zones,” which normally include the victim’s residence, child’s school and/or place of work.