Q. What is a 209A Abuse Prevention Order?
A. Commonly referred to as a “restraining order,” it is a civil court order intended to provide protection from physical or sexual harm caused by force or threat of harm from a family or household member. Please also visit the 258E Harassment Order FAQ page.
Q. How does it affect me and can I fight it and win?
A. While the actual order itself is civil in nature, it can easily transform into a criminal nightmare if it is alleged that you have violated any of the conditions of the order, whether or not you actually have done so. In an age in which domestic violence is a tremendously growing public concern, the police, prosecutors and courts now take restraining order violations extremely seriously and criminal punishment can be swift and severe. Additionally, a criminal record of domestic violence can be devastating to one’s general reputation, not to mention current jobs and future employment prospects, current schooling and future school applications, private and public housing eligibility, gun licensing, eligibility for public benefits, divorce proceedings, adoption proceedings, bail hearings, and even things such as the ability to chaperone children to and from a school event or to coach youth sports, amongst many other things. It is therefore critical to do everything possible to avoid the issuance or extension of a restraining order so that you do not become subject to either potential future criminal prosecution or miserable life-changing effects.
Fighting the issuance of a restraining order is oftentimes very difficult, but it can be done with proper legal representation and case preparation. Different strategies and tactics can be employed to show that the allegations against you are false or greatly exaggerated. If you are the victim of false allegations of abuse, you should strongly consider consulting a highly competent attorney familiar with all aspects of restraining orders. This would include not only contesting the issuance or extension of the civil order itself, but also defending against any potential future alleged criminal violations and, finally, expunging the damaging lifetime civil record of the restraining order from the Domestic Violence Registry Index. For a more detailed discussion on expunging records, please visit the Expunge A Restraining Order Record page.
The Domestic Violence Registry Index is part of the Court Activity Record Index, commonly referred to as the “CARI” system. The Criminal Offender Record Information (“CORI”), which is your criminal record, also falls under the auspices of CARI. The Office of the Commissioner of Probation is the state agency responsible for CARI data entry. The Department of Criminal Justice Information Services (“DCJIS”) is the state agency responsible for dissemination of CORI information as part of a criminal background check.
Q. What is the legal definition of abuse?
A. The Massachusetts Abuse Prevention Act, Chapter 209A, defines abuse as the occurrence of one or more of the following between family or household members:
- Attempting to cause or causing physical harm;
- Placing another in fear of imminent serious physical harm; or
- Causing another to engage involuntarily in sexual relations by force, threat or duress.
Q. How is “abuse” interpreted by the courts?
A. This is certainly a loaded question. Despite the presumably objective intent of the legal system, the interpretation of it is arguably subjective. This is precisely why case law is continually being created to interpret legal statutes. Courts will typically rule on a case-by-case basis while attempting to balance various factors such as the alleged facts, prior history between the parties, overall family dynamics, prior criminal records and propensity toward violence, and credibility of the witnesses. One should bear in mind that, like everything else in life, laws and legal definitions are also subject to interpretation, and there are both reasonable and unreasonable judges.
That caveat aside, it is not necessary for a plaintiff to allege and satisfy all three of the aforementioned legal definitions in order to obtain a restraining order but only one, or more, of the three. An allegation of a simple assault, or one of an assault and battery, will almost always constitute an attempt to cause or causing physical harm. This is even more so if criminal charges were taken against the defendant. Placing another in fear of imminent serious physical harm is indisputably the most common allegation made by plaintiffs and also necessarily subject to the most judicial discretion. A threat to commit bodily harm will generally suffice to establish imminent fear of harm in a “reasonable” person. Therefore, legitimate threats to physically injure or murder another will typically give rise to a restraining order. However, an obvious joke, a threat to ignore someone, or to cause financial injury, or to seek child custody or visitation, or to otherwise take some lawful action should not normally cause a reasonable and fair judge to issue a restraining order. The least commonly asserted basis for a restraining order is that a defendant effectively forced the plaintiff to involuntarily engage in sexual relations. A plaintiff can meet the required burden by alleging criminal acts such as indecent assault and battery, or rape, especially if the defendant is the subject of a criminal prosecution.
Q. Who can obtain a restraining order?
A. A judge can issue a restraining order against anyone who qualifies as a family or household member. The Massachusetts Abuse Prevention Act, Chapter 209A, defines family or household members as persons who:
- are or were married to one another;
- are or were residing together in the same household;
- are or were related by blood or marriage;
- have a child in common regardless of whether they have ever married or lived together; or
- are or have been in a substantive dating or engagement relationship, by considering the following factors:
- the length and time of the relationship;
- the type of relationship;
- the frequency of interaction between the parties; and
- if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship.
A person who does not fall under any one of the above categories of family or household members is not afforded the legal protection of Chapter 209A. If the plaintiff does not fall under one of these categories, the restraining order is not legal. This is an issue to be raised at the 10-day hearing. The application for the restraining order requires each potential plaintiff to check off the appropriate box to identify how you are a family or household member. A knowingly false statement in the application to a restraining order could also be later viewed as the necessary “fraud” to expunge the civil record of the restraining order from the Statewide Domestic Violence Registry Index. For a more detailed discussion on expunging records, please visit the Expunge A Restraining Order Record page.
Q. What is an ex parte order?
A. The initial restraining order can be issued ex parte. This is a Latin legal term meaning “by or for one party” or “by one side” and refers to situations in which only one party (and not the adversary) appears before a judge. An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present.
Under the Fifth Amendment to the U.S. Constitution, “No person shall … be deprived of life, liberty, or property, without due process of law.” A bedrock feature of due process is fair notice to parties who may be affected by legal proceedings. An ex parte judicial proceeding, conducted without notice to, and outside the presence of, affected parties, would appear to violate the Constitution. However, adequate notice of judicial proceedings to concerned parties may at times work irreparable harm to one or more of those parties. In such a case, the threatened party or parties may receive an ex parte court hearing to request temporary judicial relief without notice to, and outside the presence of, other persons affected by the hearing.
Ex parte judicial proceedings are usually reserved for urgent matters where requiring notice would subject one party to irreparable harm. For example, a person suffering abuse at the hands of a spouse or significant other may seek ex parte a temporary restraining order from a court, directing the alleged abuser to stay away from him or her.
A court order from an ex parte hearing is swiftly followed by a full hearing between the interested parties to the dispute. In the case of a restraining order, this full hearing is known as the 10-day hearing. State and federal legislatures maintain laws allowing ex parte proceedings because such hearings balance the right to notice against the right to use the legal system to avert imminent and irreparable harm. Far from violating the Constitution, the ex parte proceeding is a lasting illustration of the elasticity of due process.
Q. When will I know that a restraining order has issued against me?
A. You will not initially know that an ex parte restraining order has issued against you. You will only be officially notified of a restraining order when you are served. The court will not hold a 10-day hearing until it receives a return of service indicating that you have been noticed of the full hearing, and the ex parte order is valid only until this hearing date. You cannot violate a restraining order if you have not been properly served because you arguably have no legal notice of it.
Q. What is the 10-day hearing?
A. The 10-day hearing is a full two-party evidentiary hearing that is, if possible, usually held 10 days after the ex parte hearing. The 10 days is not always a hard and fast rule since weekends and holidays oftentimes come into play. If you have not been served, the court will postpone the hearing until service is made. The parties can also mutually stipulate to continue the hearing for strategic purposes, or a defendant can otherwise request that the court continue the hearing in order to buy more time to obtain necessary evidence or procure essential witnesses.
Assuming that service is properly made, you must appear at the 10-day hearing. Failure to appear at this hearing can be catastrophic as the restraining order can extend by default if the plaintiff simply appears, and without your voice being heard in opposition. At this hearing, you will have the opportunity to defend yourself and to prevent the restraining order from extending, meaning you will seek to have it vacated. You can cross-examine the plaintiff and other adverse witnesses, and present both testimonial and documentary evidence. You can elicit the testimony of favorable witnesses, and you can summons police officers or even hostile witnesses who might be able to provide exculpatory evidence on your behalf.
However, you must exercise extreme caution not to incriminate yourself by testifying at this hearing and, generally speaking, should probably refrain from testifying if there is a collateral criminal proceeding pending against you. It is therefore critical that you retain competent legal counsel since this hearing will probably be your one and only bite at the apple for perhaps another year. It is also crucial that your rights to later expunge the record of the ex parte order are properly preserved for the record. For a more detailed discussion on expunging records, please visit the Expunge A Restraining Order Record page.
Q. How long does a restraining order last?
A. A restraining order will last for as long as the judge orders it. Generally speaking, once a judge extends the restraining order beyond the 10-day hearing, it is customarily for a period of one year. However, a judge can also term a restraining order for a shorter period of time before the next scheduled full evidentiary hearing to determine whether or not it should again be extended or otherwise be vacated. A judge also has the statutory power to issue a “permanent” restraining order, usually exercised only after the first or second year elapses. Needless to say, you should do everything in your power to prevent this tragic outcome.
Q. Does the restraining order go on my criminal record?
A. No. Contrary to what many uninformed court employees, attorneys or even judges might otherwise tell you, a restraining order does not appear on your criminal record. The restraining order itself is civil in nature and only becomes criminal if it is alleged that you have violated it and have been charged with that crime. In that instance, the actual crime of violating the restraining order will appear on your criminal record. However, be careful not to confuse the initial civil record created by the issuance of the restraining order with the resulting criminal violation, as they are two entirely separate and distinct matters.
CARI is the abbreviation for Court Activity Record Index and is the umbrella that covers several databases. These include CORI (criminal offenses), CHINS (“children in need of services,” i.e., truants, runaways, disobedient children), care and protection proceedings (neglected or abused children; foster care; family reunification; parental termination; adoption), sexually abused children, and the Statewide Domestic Violence Registry Index (208/209A civil restraining orders and 258E civil harassment orders). CORI is the abbreviation for Criminal Offender Record Information, which is your actual criminal record. Your CORI shows only crimes that you were charged with, even if you were not convicted. It does not display records of civil proceedings or civil orders. Neither does it show adjudications of civil motor vehicle infractions, which is strictly the function of the Registry of Motor Vehicles, an agency that maintains its own unrelated records database. Civil records of restraining orders are maintained in the Statewide Domestic Violence Registry Index, and not in CORI. The existence of a civil restraining order record is not disclosed as part of a routine criminal background check and is obtained by other means by agencies, cities, towns, employers, schools, public housing authorities, private landlords, licensing authorities, etc. The exception to this rule is that the police or the probation department can obtain a criminal defendant’s record of civil restraining orders when it obtains the criminal record, and can cite it for bail purposes, dangerousness hearings and other reasons relevant to criminal proceedings.