We have experience representing both plaintiffs and defendants in restraining order cases, in both the Massachusetts District Courts and the Massachusetts Probate and Family Courts. The hearings in these cases have long-lasting consequences and should be taken seriously. In order to help clients obtain representation for restraining order hearings we offer flat-fee assistance. To learn more or to schedule a 1-hour consultation call us at 508.655.5980 or request a meeting here.
The safety of you and your family is our first concern, and we have the experience to help you present your case to the Court clearly enough to ensure that the Judge is aware of the danger you are facing. Being inadequately prepared should not be an option when your safety is at risk. Below we have provided answers to many of the common questions that we are asked by our clients involved in Restraining Order disputes. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
What is a 209A Restraining Order?
How long does it take to get a Restraining Order?
How long does a Restraining Order last?
Can a Restraining Order be Permanent?
How do I get protection from an abusive spouse?
In Massachusetts M.G.L. c. 209A sets the standards for obtaining a Restraining Order, also called an Order for Protection from Abuse. M.G.L. c. 209A authorizes the Court to create orders that protect people from abuse has very specific requirements for obtaining a restraining order. If you are seeking a restraining order you must show that you have a "reasonable fear of imminent serious physical harm" from the person you are seeking protection from. If you don't know how to demonstrate this to a Judge then you might not receive the protection that you need. You should consult with an attorney if you are not sure how to demonstrate this standard to the Court.
If you are afraid for your safety and the person who is threatening your safety is close by then you should immediately call the police. Your immediate safety should be your first concern. If you contact the police during a weekday then they will likely settle the immediate danger and advise you to go Court. If you contact the police at any other time, they should assist you in obtaining a Restraining Order from the emergency Judge. If the immediate danger has passed, then you should consult with an attorney as soon as possible, and attend Court to request a Restraining Order by filing a Complaint for Protection from Abuse.
Once you obtain the emergency Restraining Order, the Court will likely set a date for hearing approximately ten (10) days after the date you obtained the order (sometimes only a few days depending on the circumstances). This review hearing is designed to give the Defendant the opportunity to be heard as to their side of the story. If you are afraid of seeing the Defendant in Court then request to speak to a Victim Witness Advocate who will assist you in Court. At the time of the review hearing the Court can extend the Restraining Order for a period of time, usually 6 months or one year; Orders over one year are rare.
In our last post we provided information on the three types of orders that can help protect someone from an abusive spouse.
In two scenarios these orders can be permanent:
An abuse prevention order under M.G.L. c. 209A, often referred to as a 209A or restraining order, can be ordered for any fixed period of time up to one year. If an ex-parte hearing (without the defendant) was held for the initial hearing, then another hearing will be set up within ten (10) days to give the defendant an opportunity to tell their side of the story. After that opportunity, the order can be extended for up to one year. At the extension hearing if the plaintiff appears, the court may extend the order for any additional time reasonably necessary to protect the plaintiff. This extension can be permanent if the circumstances warrant that decision.
In addition, pursuant to a divorce case under M.G.L. c. 208, § 18, the Probate & Family Court can order a husband or wife to refrain from placing any restraint on the personal liberty of the other. In Champagne v. Champagne, the Massachusetts Supreme Judicial Court determined that this statute allowed for permanent orders pursuant to the broad language stating "to make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty."
In Massachusetts, there are three statutes which can provide protection from an abusive spouse.
As a preliminary warning, none of these statutes, nor any other piece of paper, can physically prevent someone from harming you. These laws only provide for extra penalties and orders to discourage such behavior. If you are in fear of being harmed, and don't think that anything will stop your abuser then you should call a Domestic Violence Program for help.
Despite the limitations of these orders, they can still be useful tools in discouraging, preventing and punishing abusive behavior. The three statutes that can be used by victims of abuse to obtain protection from an abusive spouse are:
1. M.G.L. c. 208, § 34B - Order to Vacate Marital Home
Authority: The Probate & Family Court may order a husband or wife to vacate the marital home as part of a divorce or separate support proceeding.
Standard: The Court may order the offending spouse to vacate "if the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order."
Time limitations: The Order to Vacate shall not exceed ninety days, but can be extended for an additional "certain period of time, as the court deems necessary or appropriate."
2. M.G.L. c. 209A - Abuse Prevention
Authority: If the Trial Court (usually the District or Probate & Family Court) finds abuse they shall order a family or household member to:
(a) refrain from abusing the plaintiff;
(b) refrain from contacting the plaintiff; and
(c) vacate and stay away from the household, multiple family dwelling, and workplace.
The Court can also award the plaintiff temporary custody of any minor children and provide for visitation or child support.
Standard: A family or household member ../includes persons who:
(a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage;
(d) have a child in common regardless of whether they have ever married or lived together; or
(e) are or have been in a substantive dating or engagement relationship.
"Abuse" is defined as "the occurrence of one or more of the following acts between family or household members:
(a) attempting to cause or causing physical harm;
(b) placing another in fear of imminent serious physical harm;
(c) causing another to engage involuntarily in sexual relations by force, threat or duress."
Time limitations: "Any relief granted by the court shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order."
3. M.G.L. c. 208, § 18 - Pendency of action for divorce; protection of personal liberty of spouse; restraint orders authorized
Authority: In a divorce action, the Probate & Family Court may prohibit the husband or wife from placing any restraint on the personal liberty of the other.
Standard: The Court may "make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty."
Time limitations: Under Champagne v. Champagne, 429 Mass. 324 (1999), these orders may be permanent, until further order of the Court.
Defending a restraining order can be a very serious matter. If you are falsely accused of abusing a person, or threatening to abuse them, you could end up with a permanent mark on your criminal record. We have the experience to know that sometimes the process is abused, and if you are a victim of false allegations, we can help you defend yourself. Below we have provided answers to many of the common questions that we are asked by our clients involved in Restraining Order disputes. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
What is an Abuse Prevention Order?
How long does an Ex Parte Restraining Order last?
Does a Criminal Record affect Child Custody?
Can the Family Court amend a Restraining Order from the District Court?
In Massachusetts, M.G.L. c. 209A allows the court to create orders that protect people from abuse. These orders, known as "Restraining Orders", "Abuse Prevention Orders" or "209A Restraining Orders" prohibit the defendant not to abuse or contact and to stay away from the person who has obtained the order, and, if applicable, the person's minor children. 209A Restraining orders may be obtained against a current or former spouse, a current or former household member, the other parent of a child, a relative by blood or marriage, or anyone with whom the person has had a substantial dating relationship. If the parties do not have one of the relationships described above, the court will not issue a 209A Restraining Order.
Obtaining a 209A Restraining Order is a civil proceeding, rather than a criminal proceeding. That means that the person seeking the order must prove by a preponderance of the evidence that they have a "reasonable fear of imminent serious physical harm". Put another way, the person seeking the order must demonstrate that the abuser has caused or threatened to cause physical harm, or has placed the victim in fear of imminent serious physical harm. Violation of a 209A restraining order is a crime, provided the restrained person knew of the restraining order.
Once an alleged victim obtains an emergency Restraining Order, the Court will likely set a date for hearing approximately ten (10) days after the date order was obtained (sometimes only a few days depending on the circumstances). This review hearing is designed to give the Defendant the opportunity to be heard as to their side of the story. At the time of the review hearing the Court can extend the Restraining Order for a period of time, usually 6 months or one year or the Court can vacate or refuse to extend the order if the Plaintiff fails to meet their burden.
If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected.
In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent.
Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent's ability to care for their child without supervision.
Other crimes that might seem unrelated, such as theft or prostitution, may not cause a Judge to question the parent's ability to care for the child, but rather their suitability as a role model. These types of convictions might be a reason to limit time with the child, but may not require supervision (assuming that this criminal behavior is in the parent's past).
Judges have access to the criminal record of parents, and when issues are raised like those discussed above, the court will often request the records of both parents before making a determination. This is also true in any 209A Restraining Order cases.
It is also important to note that the Criminal Offender Record Information (CORI) system is changing in 2012. All of the changes are listed here. Some of the changes that could affect your case, include a new procedure for having an inaccurate record amended, and new permissions for access to sealed CORI by court order in domestic abuse/child custody actions and where a person's safety is at stake.
In May, 2009 Norfolk County instituted a pilot program allowing 209A Restraining Order cases opened in a District Court in Norfolk County to be transferred to the Norfolk Probate and Family Court, if there is already an action pending in that Court. We described the program in a post entitled: One Court instead of Two for Domestic Abuse Cases in Norfolk County - A Pilot Program.
That pilot program ended 12 months later and was not renewed, which means that the courts do not currently allow the transfer of a 209A Restraining Order case from district court to the probate and family court. This raises the question:
What happens if there is a 209A Restraining Order in a district court and a Divorce case between the same parties in the Probate and Family Court?
If there are no children in the case, the Probate and Family Court is unlikely to concern themselves with the Restraining Order case because the divorce is primarily dealing with financial issues which don't typically require direct communication between the parties.
However, in cases with children, there are many issues which can require parents to communicate and or have contact for visitation transitions. Often-times restraining orders will initially include the children but later be modified to allow for parenting time. In many cases of domestic violence both children an spouses require protection from an abuser. However, there are also many cases which only involve threats or allegations relating to the spouses and the children are not involved in the allegations.
When an initial restraining order is entered in a District Court and the parties are also involved in a case at the Probate & Family Court relating to the custody or visitation with the minor children, it is likely that the Family Court Judge will be asked to enter a visitation plan. The problem arises when the arrangements for visitation violate the existing restraining order. In these cases the restraining order needs to be amended so there is not a conflict with the Family Court order. The Guidelines for Judicial Practice: Abuse Prevention Orders (rev. Sep 2011) contain specific procedures for the Family Court to follow in these instances.
Pursuant to ADMINISTRATIVE ORDER 96-1, the Family Court Judge can exercise special jurisdiction over the district court case for the specific purpose of amending the restraining order to match the provisions of the custody order. Once the Family Court Judge has chosen to exercise this special jurisdiction, which requires that the Plaintiff on the restraining order have notice and opportunity to be heard, the Court must follow the following procedure:
The Probation department in the modifying court shall cause the modified order to be transmitted by facsimile to the Probation department of the issuing court promptly to enable the Probation staff of the issuing court to enter the order into the Registry on the day on which the modified order is issued. Upon receipt of the modified order, the Probation department in the issuing court shall promptly provide a copy of the modified order to the staff or the Clerk or Clerk-Magistrate of the issuing court, who shall promptly docket and file the modified order. The Register of Probate in the modifying court shall cause the modified order to be mailed to the Clerk or ClerkMagistrate of the issuing court no later than three days after the modified order is issued.Given how understaffed the courts currently are this is probably easier said than done, and if you are a party to such an action you should make sure that the restraining order is updated with both the issuing court and the police department before you act on the modified order. Otherwise you risk being charged with violation of the restraining order.
On May 1, 2009, the Supreme Judicial Court of Massachusetts expanded the Limited Assistance Representation program (hereinafter "LAR") to include all trial court departments. At Skylark Law & Mediation, P.C. we recognize that LAR gives us the opportunity to provide "unbundled" services to clients at a Flat Fee, which can be a great service for clients of limited means. Below we have provided answers to many of the common questions that we are asked about Flat Fee Assistance and the LAR program. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
What is Flat Fee Assistance (also known as Limited Assistance Representation?)
What are the advantages of flat fee assistance?
How do you set the fees for restraining order cases?
Limited Assistance Representation (also called "unbundling") allows a lawyer to provide partial services to a client, limiting the attorney's representation to only a specific matter while the client manages the remainder of the case. In Family Law, this often means that the lawyer either assists in the preparation of court pleadings, but doesn't go to court, or agrees to only go to court for specific events. Limiting services in this way allows for greater predictability in the amount of time an attorney might spend working on your case. This predictability allows us to provide a Flat Fee for many family law related services including Restraining Order hearings.
Hiring an attorney to represent you in your case can prevent costly mistakes. If you go to an extension hearing without an attorney the decisions that are made that day by the Judge can have lasting consequences. LAR allows you the option of hiring an attorney for advice, or limited appearances without having to incur the cost of an attorney for multiple hearings. In many circumstances this also allows the attorney enough predictability to be able to provide a flat fee service, something that is otherwise typically unusual in lengthy litigation.
Every case is different, and although our hourly rate is standard, it is very hard to know how much time a particular case will take. The LAR program allows us to limit our representation in a way that allows greater predictability in the amount of time we will have to spend on your case. After consultation regarding the type of services you want to limit our representation to and the complications involved in your case, we are usually able to provide a flat fee that we are willing to work for in those circumstances. If you then decide to hire us for further services we can agree to work on an hourly basis or work out a new flat fee for those additional services. In each case, a Limited Assistance Retainer Agreement will be signed by both the attorney and the client, specifically stating what services the attorney is to provide and what portions of the case, the client intends to perform on their own.
If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
If you are served with a Complaint for Protection from Abuse (sometimes referred to as a 209A Restraining Order) then your name and the Complaint are recorded in the Domestic Violence Record Keeping System which is visible to Judges and law enforcement officials (and certain airport personnel) though CARI (Court Activity Record Information), a subset of CORI (Criminal Offender Record Information).
There is presently no statutory provision in Massachusetts allowing these records to be expunged.
This is explained in greater detail in a Massachusetts Bar Association article which indicates that the Mass Bar proposed an amendment to the statute, mandating expungement of the record when the Order was vacated at the first hearing (after being issued on an ex parte hearing, which most 209A Orders are initially). Unfortunately, this legislation was not enacted by the legislature, and today the law remains that there is no statute allowing these records to be expunged.
In Vaccaro v. Vaccaro a Husband requested via Motion that the record be expunged in the statewide system after a Judge found insufficient facts to justify extension of the Order, but the Supreme Judicial Court overturned the expungement because there is no statutory authority to expunge the record. Vaccaro v. Vaccaro, 425 Mass. 153, 680 N.E.2d 55 (1997).
In Commissioner of Probation v. Adams the Court did allow a record to be expunged, distinguishing the circumstances in that case by stating "a judge has the inherent authority to expunge a record of a 209A order from the Statewide domestic violence registry system in the rare and limited circumstance that the judge has found through clear and convincing evidence that the order was obtained through fraud on the court." In that case "fraud" consisted of a calculated pattern of nineteen false and perjurious statements. Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 730, 843 N.E.2d 1001 (2006).
In Noble v. Noble the Appellate Court (quoting Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598, 638 N.E.2d 29 (1994)) further defined a "fraud on the court" as when it can be "demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Noble v. Noble, 75 Mass.App.Ct. 1121, 909 N.E.2d 59 (2009).
Unfortunately, this means that in most cases where a 209A Restraining Order is vacated at the first hearing, it is still unlikely that the Defendant can get the original Order expunged from their record. The Courts have stated that this reflects a legislative intent to give the Courts and police as much information as possible when dealing with domestic violence situations. Unfortunately, as is often the case, this information can cost an innocent person their rights, even if they were falsely accused (but can't meet the burden of proving fraud).
If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.