Although civil and criminal cases involve some different processes and procedures, sometimes there is overlap between the two. One example deals with civil restraining orders. A party who is a victim of abuse may be able to seek a protective order in civil court. Meanwhile, the abuser may also face charges related to the abuse in a criminal prosecution. In a recent Massachusetts case, the Appeals Court dealt with the issue of whether a lower court should have extended a civil restraining order even when there was a pending criminal case against the defendant husband, in which certain conditions were placed on him. This is the case of Vera V. v. Seymour S.


Case Background

After about a year of marriage, the wife in this case gave birth to the couple’s daughter. The daughter was born prematurely and the husband was concerned about her weight. On multiple occasions, he squeezed the wife’s breast, causing her pain. He told her it was her fault that the baby was born prematurely. He also said she “‘was a horrible mother because [she] wasn’t fat enough and wasn’t eating enough.'”

When the baby was just under a month old, the husband pushed the wife and took the baby out of her arms. He then left the room with the baby. When the wife asked if he was going to hurt her, he did not respond. Another time, the husband shoved the wife while she was holding the baby. The wife lost her balance. She thought she was going to drop the baby.

The husband told the wife she could not leave with apartment with the baby. He said he would make her and the baby suffer if she did. He further threatened to make their lives miserable if the wife left him. The husband told the wife that he knew he could hurt her by hurting the baby.

Ultimately, the wife left with the baby while the husband was sleeping. She went to her brother’s house. The next day, in the district court, the wife got a temporary restraining order against the husband. She also filed a report at the police department. The police then arrested the husband.


Lower Courts

The husband faced charges of assault and battery on a family or household member. At his arraignment, a Boston Municipal Court judge ordered the husband not to abuse the wife and to abide by the abuse prevention order (i.e. restraining order).

Separately, there was a hearing to extend the civil restraining order. During that hearing, the husband declined to testify. He did so given the pending criminal case against him. The husband’s attorney, however, stated this was “‘an isolated event.'” His attorney said, “‘This case is going to be in the divorce court for a long time.'” The attorney added the husband was to face charges in district court and asked the judge to deny the extension.

The judge stated there certainly was “‘a no abuse condition'” in the husband’s conditions of release for the pending criminal case. In turn, the husband’s attorney incorrectly stated it was “‘[s]tay away no contact.” The judge then stated that was “‘even stronger.'” The judge told the husband he could go to jail for violating that condition. Further, the judge expressed satisfaction upon learning of Department of Children and Families (“DCF”) involvement in the matter.

Ultimately, the judge declined to extend the restraining order. The wife then appealed.


Appeals Court

The Appeals Court explained that in considering an extension, the judge needed to weigh “’whether the plaintiff has shown by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of ‘abuse’ as defined in G. L. c. 209A, § 1.'” Usually, to prove this, the plaintiff must show a reasonable fear of imminent serious physical harm. However, if the plaintiff has already suffered physical harm, the court may grant an extension if “‘there is a continued need for the order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent.'”


“No Substitute for an Abuse Prevention Order”

The Appeals Court stated that conditions of pretrial release in a pending criminal case are no substitute for an abuse prevention order. “When a defendant violates an abuse prevention order, the defendant may be prosecuted criminally and is subject to incarceration for up to two and one-half years in a house of correction,” the court explained. “That abuse prevention order may not be vacated without notice to the plaintiff.” By contrast, the court noted, a person who violates pretrial release conditions may only be held for 90 days if the judge makes certain findings — this is within the judge’s broad discretion.

The same reasoning applies to DCF, the Appeals Court noted. DCF cannot incarcerate a person for engaging in abuse. At best, DCF can take custody of a child and involve law enforcement. The Appeals Court again said that DCF is not a substitute for an abuse prevention order. “Rather than rely on these factors, a judge should simply determine whether the plaintiff has shown ‘a reasonable fear of imminent serious physical harm,’” the Appeals Court stated, “or whether the plaintiff has ‘suffered physical abuse’ or ‘past sexual abuse’ and ‘an order [i]s necessary to protect her from the impact of that abuse.'”

As the lower court judge appeared to consider the conditions of pretrial release and DCF involvement as the basis for not extending the restraining order, the Appeals Court vacated the lower court’s decision. “It appears that the judge based the denial, at least in part, on the conditions of pretrial release placed on the defendant, Seymour S., in the related criminal case,” the Massachusetts Appeals Court stated. “Concluding that this was not a proper basis for denying the extension of an abuse prevention order, we vacate the order and remand the matter for further proceedings.”


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