Emma has been going through a very difficult time. She is now considering getting a 209A protective order, known as a restraining order. Her long-time boyfriend and the father of her two children, Earl, recently lost his job. The stress of unemployment worsened the couple’s already rocky relationship. Earl became increasingly abusive and violent toward Emma. He verbally abused her in front of the children and slapped her twice. Earl has verbally abused Emma in front of the children in their shared home, and he also slapped her on two occasions. Then, last night, Earl beat Emma until she almost lost consciousness and threatened to kill her before fleeing the home. Emma knows she needs to contact a trusted attorney and inquire about her rights.
Emma, like anyone in her situation, can seek a protective order. This is outlined under Massachusetts General Laws, Chapter 209A. Restraining orders in general are ways for the court to compel a defendant to stop doing something. A protective order or restraining order safeguards victims of domestic abuse. The abuse is committed by a household member or former member. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is/was dating.
A person files a complaint for protection from abuse to obtain a protective order. They file the complaint in court with an affidavit made under oath and the pains and penalties of perjury. In the affidavit, the plaintiff must describe the abuse circumstances and provide evidence, such as injuries, hospitalization, or abuse of minor children.
The complainant must follow due process, ensuring the defendant is notified and has the chance to be heard. The court will notify the defendant and usually holds a hearing within ten business days. In urgent cases of potential abuse, the court may issue a protective order ex parte. Additionally, if the court is closed or the plaintiff faces hardship, the court can issue a temporary emergency order without a complaint. The court may extend initial orders if the plaintiff continues to show abuse similar to the initial order.
It is important to note that a 209A protective order case is civil and not criminal in nature. The victim of abuse files the case against the abuser without involving a prosecutor. However, if the court grants a 209A protective order and the abuser violates it, the abuser may commit a crime and face arrest. Violation of the protective order might occur through continued abuse, threats, or, in some cases, even by contacting the victim despite the court’s orders not to do so.
What are the defendant’s rights in regards to defending a complaint for a protective order? First, as explained above, the defendant in most circumstances has the right to notice and the right to appear at the hearing. Second, the defendant may challenge the plaintiff’s complaint in various ways, including by showing that the plaintiff has fabricated his or her allegations. Third, the defendant may present credible evidence to offer a more balanced view of their conduct to the court.For example, the defendant may choose to present evidence of positive and loving family relationships, gainful employment and financial support by the defendant of any minor children, and general good standing in the community.
It is important to note, however, that the defendant may exercise his or her right against self-incrimination and refuse to testify at the hearing, particularly if there is a pending or possible criminal prosecution against the defendant. Lastly, once a court grants a protective order, the defendant may, under some circumstances, petition to terminate the order or even expunge it from the record.
Do you have questions about protective orders? Are you in need of obtaining one? Or, are you the defendant in a case where someone has filed a complaint for protective orders against you? Our experienced attorneys can help. To schedule a free consultation with our office, call 978-225-9030 during regular business hours or complete a contact form here. We will get back to you at our earliest opportunity.