In Massachusetts, it is very easy to obtain a restraining order against someone. This is both good and bad. The system works very well for those who need it. Unfortunately, it works just as well for those who want to abuse it. The best way to avoid a restraining order violation is to prevent it from ever issuing. Under G.L. c. 209A, a person can apply for an Abuse Prevention Order. Under G.L. c. 258E, a person can apply for a Harassment Prevention Order. Both of these are commonly referred to as “restraining orders,” but there are significant differences between the two.
A 209A order can only be obtained if the plaintiff (person applying for the order) and defendant (person against whom the order is sought) are “family or household members.” This means the plaintiff and defendant (1) are or were married to one another; (2) are or were living together; (3) are or were related by blood or marriage; (4) are or have been in a substantive dating relationship; or (5) have a child together.
If the plaintiff and defendant qualify as family or household members, then the plaintiff must be able to show “abuse.” This is defined as (1) physical harm or attempted physical harm; (2) fear of physical harm; or (3) forced sexual relations.
The 209A order can be applied for without the presence of the defendant if the plaintiff can convince the judge that there is a substantial likelihood of immediate danger of abuse by the defendant. In such cases, a judge will issue a temporary order that is effective for up to 10 days. On the day that the temporary order is issued, the court will also schedule a second hearing that will take place within 10 days. At this hearing, both sides will have a chance to tell a judge why the order should or should not be extended for up to one year.
If you have been served with a notice that a temporary order has been issued against you, then you should immediately contact our office so that we can thoroughly prepare to defend your rights at the next hearing. Many serious consequences can flow from the issuance of a temporary restraining order.
Some of those consequences are: (1) relinquishing custody of any minor children; (2) revocation/suspension of your Firearm Identification Card/License to Carry a firearm; (2) paying temporary financial support to the victim and/or minor children; (3) paying the victim any money for lost wages, replacing locks to the home, moving costs, and attorney fees; and (4) surrendering keys to the household.
In order to obtain a 258E Harassment Prevention Order, the plaintiff must prove that there have been at least 3 separate acts of “harassment.” Harassment must be aimed at a specific person. It must be willful and malicious and done with the intent to cause fear, intimidation, abuse, or property damage. The acts must also actually cause fear, intimidation, abuse, or property damage. A 258E order can also be obtained by showing one act of forceful sexual relations, or one act that constitutes one of the following crimes: Indecent Assault & Battery; Rape; Forcible Child Rape; Assault with Intent to Rape; Enticement of a Child; Criminal Stalking; Criminal Harassment; or Drugging for Sexual Intercourse.
Like a 209A order, a plaintiff can obtain a temporary order under 258E. In both situations, it is important to ensure that you are represented at the following hearing. The extension of an order under 209A or 258E can have serious, life-long consequences. If you want the best possible chance of avoiding the extension of one of these order, then contact our office immediately. This is also true if you are being accused of violating any type of restraining order.