Restraining Orders/Harassment Prevention Orders
Restraining orders or abuse prevention orders fall under Massachusetts General Laws Chapter 209A. It allows a family or household member to file an application for court ordered protection against abuse. Abuse includes physical harm or attempted harm, fear of physical harm and/or forced sexual harm. The definition of family or household member includes individuals who are married to each other, reside together in the same house, are or were related by blood or marriage, those who have a child together, and those in a substantive heterosexual or same sex relationship.
In determining if a relationship is substantive, a court can consider the length of the relationship, frequency of contact between the parties, termination of the relationship by a party, and the length of time since termination. Also, grandparents of children to unmarried parents can also seek a protection order against the child’s parent who is not related to them.
The court can also enforce protection orders issued by another state. It is effective for the length of time originally ordered by the other state and a certified copy can be filed with the Superior, District or Probate and Family Court so that it can be entered with the statewide domestic violence record keeping system in the Commonwealth. However, it does not have to be registered if the victim doesn’t want a new location of residence released.
If the order is entered by the Probate Court, it will supersede prior orders from the District Court. This eliminates conflict issues between the courts.
In most cases, an individual seeking a restraining order must file a complaint and affidavit supporting the action with the Superior, District or Probate Court. The party will appear initially ex-parte (without the other party present) before the court. The court can issue the order temporarily until there is a full hearing or it can defer on the order and set the matter down for a full hearing for the other party to be present. The temporary order continues for up to 10 days and will be set for a full hearing within that time frame. Once the temporary order is issued, the police where the Defendant resides will serve the order. If an application needs to be made after the court is closed, you can go to your local police station in your town to obtain a temporary emergency 209A restraining order. You can seek the order without utilizing an attorney.
If an order is entered, a Defendant can be ordered to refrain from further abuse and refrain from contacting the victim directly, indirectly, by phone, email, text or through third parties. The Defendant can be ordered to stay away from the victim’s home, workplace or school. Usually, the stay away order is to remain at least 100 yards from the victim. The order can award custody of the children to the victim. The Defendant may be ordered to pay support, pay for the victim’s losses, including loss of wages, medical expenses, moving expenses, attorneys fees, among other things. The Defendant may further be ordered to refrain from contact with the children, to surrender keys to the home and surrender firearms and identification cards. The court cannot make a visitation order for the Defendant with the children. Lastly, the court can order that victim’s address be impounded. Restraining orders typically last one year and can be renewed thereafter. An order can also become permanent.
There is a difference between no contact orders and restraining orders. In a criminal case, the Defendant may be arraigned on criminal charges stemming from an incident of domestic violence. A court can order the Defendant to stay away or order a no contact provision as a civil restraining order between the parties. Violation can be penalized by revocation of bail or Defendant’s recognizance or charge of criminal contempt of court. Violation of a 209A restraining order is a misdemeanor and the maximum penalty upon conviction is 2 and ½ years in the house of correction.
An individual who cannot seek a restraining order, may be able to obtain a harassment prevention order. A harassment order is obtained through the District Court, Superior Court, BMC or Juvenile Court (parties under 17) and cannot be obtained through the Probate Court. Harassment is defined as 3 or more acts aimed at a specific person. The acts do not necessarily have to be recent or considered ”abuse” as required for a 209A order. The acts must be willful and malicious, done with intent to cause fear, intimidation, abuse or property damage. Also, the acts must have caused the victim fear, intimidation, abuse or property damage. It can be one act if by force, threat or duress causes another to engage in involuntarily sexual relations or violates certain statutory provisions. The family relationship or household member requirement for a 209A order is not required for a 258E order. For example, a tenant can seek to obtain a harassment prevention order against a landlord. A Defendant can be ordered to not abuse or harass the victim, not to contact the victim, remain away from victim’s home or work, pay monetary damages for direct losses, and attorneys fees.
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