Domestic Violence – Restraining Orders & Abuse Prevention Orders
All you have to do is watch the news to know that domestic violence continues to be a serious issue in Massachusetts and beyond. Tracking the number of domestic violence incidents is a challenge because it is widely believed that many incidents of domestic violence remain unreported.
Approximately one in four women (25%) has experienced domestic violence in her lifetime, and women account for 85% of the victims of intimate partner violence.
One of the tools most commonly used to combat domestic violence, even in those cases not initially reported to law enforcement, are Abuse Prevention Orders, also known as restraining orders.
Restraining Orders in Massachusetts
Court orders flowing from the Abuse Prevention Law in Massachusetts, are more commonly called a “restraining order”, “abuse prevention order”, or “209A order.” The statute is Massachusetts General Laws c. 209A.
Where to Obtain an Abuse Prevention Order
The legal system wants victims to have convenient access to the courts, thus you may obtain a restraining order at many different courts, including district courts, Boston Municipal Court, Superior Court, or the Probate and Family Courts. However, if you are alleging to be in a substantive dating relationship with the abuser you may not apply for a restraining order in the Superior Court.
Most commonly restraining orders are initially obtained at a district court due to their accessibility. For domestic relations cases already in progress, the Probate and Family Court tends to be the best option. In addition, district courts often have resources for victims of abuse, such as Victim Witness Advocates who are attorneys employed by the District Attorney’s Office or volunteer Domestic Violence Advocates who are trained to assist the plaintiff (victim) in the process. You may apply for a restraining order in the district court where your residence was located when the abuse occurred or your current residence if you have fled the abuse.
Who May Apply for an Abuse Prevention Order?
Under Chapter 209A, a family or household member may file an application with the court for protection against:
- physical harm or attempted physical harm;
- fear of physical harm;
- and/or forced sexual relations.
The statute defines “family and household members” as persons:
- who are or were married to one another
- who are or were residing together in the same household
- who are or were related by blood or marriage
- who have a child in common even if they have never been married or lived together, or
- who are or have been in a substantive heterosexual or homosexual dating or engagement relationship.
- When determining if there is a substantial dating relationship, the court considers the length and type of relationship, the frequency of interactions between the two individuals, whether the relationship has been terminated by either party, and the amount of time that has elapsed since the termination of the relationship.
How to Obtain an Abuse Prevention Order
There are two ways to obtain a restraining order under Massachusetts General Laws c. 209A. The first option is to go to any of the above-mentioned courts during business hours and fill out an Application for an Abuse Prevention Order in the Clerk’s Office. As part of this application, the plaintiff fills out a sworn affidavit, which should state the facts and circumstances of the most recent incident of abuse as well as any past incidents of abuse. The victim should include other details in the affidavit when applicable, such as: any history of abuse involving weapons, prior restraining orders, alcohol or substance abuse, manipulative, controlling, blaming or possessive behavior, as well examples of the defendant’s denial or minimization of abusive behavior.
After filling out the Application for an Abuse Prevention Order, the plaintiff will appear in the courtroom before the judge. The defendant is not present because he or she would not have any notice of the hearing. If the judge finds by a preponderance of the evidence (based upon the affidavit and sworn testimony of the victim/plaintiff) that there is a substantial likelihood of immediate danger of abuse, the court will issue a 10-day temporary restraining order.
The plaintiff will keep a copy of this order and the police department will be provided with another copy. It is the local police department’s responsibility to serve (deliver) the defendant with a copy of the order. The order will also notify the defendant of their right to appear and present evidence at the “10-day hearing” because this review hearing must be scheduled within ten days. The plaintiff must be present at the 10-day hearing or the order will terminate. The defendant may choose whether or not to attend the 10-day hearing. However, if the defendant does not attend and the victim does attend, the order will be extended. The judge may extend the order for any length of time up to one year. Additionally, the judge will set another hearing date, and at that time the plaintiff must return to court to request that the order be extended for another period of time. Although not commonly granted, the victim may also request the judge make the restraining order permanent.
Obtaining a Restraining Order After Hours and on Weekends in Massachusetts
If an incident of abuse occurs after court hours or on a holiday or weekend, an emergency Abuse Prevention Order can be obtained through the police department or when police respond to an emergency. The police will telephone the on-call judge who will speak with the victim and decide whether or not to issue an emergency restraining order. If the emergency order is issued, the victim must appear in district court the next business day to formally apply for a restraining order and follow the same process as set forth above.
What Can an Abuse Prevention Order Actually Do?
The judge has a number of options when it comes to restraining orders, and can order the abuser to:
- Refrain from further abuse of the victim;
- Refrain from contacting the victim directly or indirectly;
- Temporarily relinquish custody of any minor children;
- Pay temporary support to the victim and/or minor children where defendant has a legal obligation to support them or pay expenses related to the marital residence;
- Pay the victim for any money lost as a result of the abuse (ex. Medical bills, lost wages, etc.);
- Move out of the residence shared with the victim and/or stay away from the victim’s residence, place of work, or family’s house;
- Surrender keys to the house; and/or
- Refrain from abusing the plaintiff’s minor children.
Abuse Prevention Orders and the Probate and Family Court
The Probate and Family Courts in Massachusetts have superseding authority over the Boston municipal, superior court, and district courts when it comes to abuse prevention orders, child visitation orders, and custody orders. Even when a restraining order is obtained in the District Court, Boston Municipal Court, or the Superior Court, the Probate and Family Court is able to modify, extend or vacate a 209A order.
For example, if you obtain a restraining order in the Wrentham District Court for example, and the judge orders the defendant not to contact you or your children, a Norfolk County Probate & Family Court judge could decide to modify this order so that the defendant can call the children or have parenting time with the children.
Judges must consider evidence of domestic violence, including the existence of Abuse Prevention Orders, when issuing orders regarding child custody and visitation. The court will consider past or present abuse toward a family or household member as a factor contrary to the best interests of the child, and this element will likely receive significant weight in the court’s decision.
Abuse of Domestic Violence Restraining Orders
Situations where one person will try to gain an advantage in a divorce or custody case by obtaining an Abuse Prevention Orders under false pretenses do occur. If you have been falsely accused of domestic violence and are served with a restraining order, it is in your best interest to retain an attorney to represent you to protect and defend your rights.
If you are the victim of domestic violence, there are resources available:
Middlesex County Area – Domestic Violence Services Network: 888-399-6111
Norfolk County Area – Domestic Violence Ended: 888-314-3683
Remember that your safety and that of your children is the most important priority. If you or someone you know needs assistance with a case involving domestic violence or a restraining order, please contact one of the Massachusetts divorce and family law lawyers at Next Phase Legal LLC in Medfield, MA.