Once a protective order is issued, under what circumstances might that order be expunged by the court? This question was recently addressed by the Massachusetts Appeals Court.

The case of J.S.H. v. J.S. involved a protective order of harassment prevention which was issued under Massachusetts General Laws, chapter 258E. The plaintiff who sought the order was president of a religious non-profit organization which ran a support group for victims of domestic violence. The defendant was the husband of one of the women who attended the group. The plaintiff claimed in her supporting affidavit that the defendant wrote to board members of her organization, seeking to discredit her, and that he also sent her multiple harassing emails. No letters or emails were included with the plaintiff’s affidavit. The trial court granted an order of protection. Upon expiration of the order, the plaintiff sought to extend it, and she submitted copies of a letter and two emails which the defendant had sent to the organization’s board. The trial court declined to extend the order.

Nearly a year later, the defendant sought to expunge all evidence of the order of protection. The defendant claimed that the plaintiff had committed fraud on the court in obtaining the original protective order, because she indicated that he had sent her emails directly. The court declined to expunge the records, and on appeal, the Appeals Court agreed.

“Chapters 209A and 258E are particularly similar in their treatment of records following the issuance of an order, as well
as after an order is vacated. Under both statues, once a judge issues an order, the order and supporting papers are transmitted to the appropriate law enforcement agency,” the Court explained. Under both statues, once an order is vacated, the court sends written notification to the appropriate law enforcement agency directing it to destroy its records of the vacated order…However, there is no explicit statutory authority regarding the expungement of records of c. 209A or c. 258E orders from any Statewide registry maintained by the commissioner.”

In order for an expungement order to be appropriate, the Court noted, the petitioner must be able to prove that the original abuse protection order was obtained through fraud on the court. Citing a previous case precedent, the Court explained that “[a] ‘fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.”

In the case at hand, the Court said, nothing suggested that the plaintiff fabricated her story or was motivated by a deceptive scheme. Something more serious and egregious is required to find fraud on the court than stated in this case, the Court noted, affirming the decision not to expunge the records.

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