Restraining orders

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. In a recent appellate case, the Massachusetts Appeals Court addressed modifying restraining orders and clarified the standard of proof required.

Modification of an oral agreement

The case, Cordelia C. v. Steven S., involved a father-daughter relationship. In 2003, the daughter purchased the father’s two unit home by assuming his existing mortgage. Originally, the parties orally agreed that the father could live in one unit rent-free for the rest of his life. In 2016 the daughter served her 87-year old father with a notice to quit. She then initiated eviction proceedings against him when he refused to leave the home. The judge of the Housing Court entered judgment in the father’s favor.

Two parties seeking and receiving mutual restraining orders

Meanwhile, several actions occurred in the Probate and Family Court. Both parties seeking and receiving mutual restraining orders against each other. The orders were based upon the parties’ mutual allegations of abuse against each other. These allegations included police involvement with an arrest of both parties. In addition to staying away from each other, the daughter must vacate the home.

Shortly after, the daughter obtained a modification of the original orders, allowing her to return to the home. She later filed for an extension of that order. Only the daughter attended the extension hearing, as the father was in Florida at that time. A modification to the original restraining order, necessitated the father vacating the home. The father immediately filed to vacate that extension order. It worked, with the motion judge allowing the father to stay in the home, but leaving in place the abuse prevention and “no contact” portions of the order.

Standard of proof required to modify a restraining order

The Court concluded that the standard of proof required to modify an existing restraining order depended on “the status of the existing order, the nature of the modification sought, and, in some cases, whether the plaintiff or the defendant seeks the modification.” In order to obtain a modification, the party requesting it must show by clear and convincing evidence that there was a significant change of circumstances. “For that reason,if a defendant who wishes to modify an existing order in a way that changes it substantively to reduce the restraints upon the defendant also has the burden of showing by clear and convincing evidence that the provision at issue is no longer necessary to protect the plaintiff from reasonable fear of “imminent serious physical harm” or other abuse,” the Court explained.

In the case at hand, the father had notice of the extension hearing and did not attend. However, he did not reasonably expect that the current order would be expanded in its scope. The Court reasoned that the father had no notice or reason to expect that the restrictions imposed by the extended order would be enlarged beyond the original order. Accordingly, the father was entitled to be heard. This rests solely on the issue of enlarging the protections in the order when he requested such a hearing promptly upon learning of the enlargement.

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