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 added to the couple’s already rocky relationship, and Earl has grown increasingly abusive and violent towards Emma. 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.
One particular recourse for Emma, and for anyone in her situation, is to seek a protective order 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, sometimes also referred to as a restraining order, serves to protect a victim of domestic abuse, which is perpetrated by a member or former member of the victim’s household. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is/was dating.
The process by which a protective order is obtained is called a Complaint for Protection from Abuse. The Complaint is filed in the court, along with an affidavit, which is a sworn statement made under oath and under the pains and penalties of perjury. In the affidavit, the plaintiff must describe the particular circumstances surrounding the abuse, along with any evidence of prior abuse—for example, any facts regarding injuries and hospitalization, any facts regarding abuse of the minor children, and the like.
As with any other claim in court, the person who files the Complaint must adhere to certain requirements of due process: ensuring that the opposing party is entitled to notice and the opportunity to be heard. Notice of the Complaint is served on the defendant, and a hearing is typically held in court within ten court business days of filing the Complaint. There are, however, some situations under which the Court may issue a protective order ex parte, which means without the presence of the defendant, where there is a substantial likelihood of immediate danger of abuse. Moreover, a temporary emergency order may be granted even without the need to file a Complaint where the court is closed for business or the plaintiff’s physical condition, or some other severe hardship, makes him or her unable to appear in court. Initial orders that are granted may be extended, if the plaintiff continues to make a showing of 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 person seeking the order (the victim of abuse) files the case against the defendant (the abuser), and no prosecutor is involved. However, if the court grants a 209A protective order, and the defendant violates that order, then the defendant might be committing a crime and therefore might be arrested. 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 is allowed to present his or her own credible evidence in order to present a more balanced view of the defendant’s 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 protective order is granted, 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 in which a Complaint for protective orders has been filed 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.