A restraining order serves to protect victims of abuse perpetrated by certain categories of people. In Massachusetts, a court can issue a 209A restraining order against a member or former member of the victim’s household. A court can also issue a 209A restraining order against a victim’s family member, someone the victim is or was dating, or a victim’s spouse or former spouse. To obtain a restraining order, a victim must prove by a preponderance of the evidence that s/he is suffering from abuse. Abuse does not necessarily mean physical abuse. In fact, the definition of abuse for restraining order purposes includes placing someone in fear of imminent serious physical harm. Nonetheless, the fear must be reasonable. The appellate case, Noelle N. v. Frasier F., discusses this standard. How does a victim prove a reasonable fear of imminent serious physical harm?
Some Restraining Order Basics
Under some circumstances, a court may issue a temporary restraining order ex parte, meaning without the presence of the defendant at the hearing. A court may issue such an order if there is a substantial likelihood of immediate danger of abuse. If the court issues an ex parte order, there will be a second hearing within 10 business days, at which the defendant has the right to be present. This is commonly known as the 10-day hearing. At this second hearing, the court will decide whether or not to extend the ex parte order.
The former spouses in Noelle N. v. Frasier F. were married and had twin daughters, born in 2014. In February 2018, they divorced. At the time, they were living in Maine. The court issued a divorce judgment ordering that the children would live with the ex-wife/mother after the divorce. Additionally, the ex-husand/father was to “‘have reasonable rights of contact with the children.'” After the divorce, the ex-husband moved to Florida.
Ex Parte Order
In September 2018, the ex-wife applied for a restraining order against her ex-husband. She was living in Massachusetts at this time. The ex-wife’s affidavit described escalating incidents with her ex-husband. It did not, however, involve an act of physical or sexual violence, or an explicit threat to hurt her or the children physically. Nonetheless, the ex-wife told the judge at the ex parte restraining order hearing that the ex-husband’s behavior was “‘escalating.'” She also told the judge “she felt unsafe ‘now that there are allusions to guns and mentions of my life, accidentally being killed.'”
Given the evidence, the trial court judge issued the ex parte restraining order. Under the ex parte restraining order, the court ordered the ex-husband not to abuse his ex-wife. Moreover, the court ordered that the ex-husband could not contact his ex-wife directly or indirectly. The order further stated the ex-husband had to stay 100 yards away from the ex-wife. He had to stay away from her home and her workplace, as well. The order awarded custody of the parties’ minor children to the ex-wife. The ex-husband was not to contact the children and he had to stay away from their day care center.
Evidence at 10-Day Hearing
The court then held a 10-day hearing to decide whether or not to extend the ex parte order. The ex-husband was present. At this hearing, the ex-wife testified regarding multiple incidents involving the ex-husband. She described his behavior as “erratic” and “escalating.” She further stated his behavior made her fear for her safety.
The ex-wife’s testimony included an incident in which the ex-husband told her, “‘this is war,’ and that he would ‘stop at nothing to get his children'” after the ex-wife called the police to enforce a no trespass order against him. Other incidents involved the ex-husband’s threats of harm to others, references by the ex-husband to his gun, and the ex-husband showing the ex-wife and their children his gun on a FaceTime call. The ex-husband also threatened actions against the ex-wife and her family, including having the ex-wife’s brother, a U.S. Marine, court-martialed. The ex-wife testified that the ex-husband started to “execute on his threats,” for example, by sending accusations about the ex-wife’s mental and physical health to her employer. During a separate incident, the ex-wife stated the ex-husband told her if she went to the police, she’d be sorry.
Regarding the children, the ex-wife testified the ex-husband had not seen them since July 2018, finding the terms of the divorce to be “‘too restrictive.'”
The ex-husband denied threatening the ex-wife with physical harm. He agreed that he continued to send her e-mails and text messages, even though she asked him to stop.
The trial court judge extended the ex parte order, but amended it so the ex-husband could have contact with the parties’ children (as the divorce judgment provided). The ex-husband appealed.
Massachusetts Appeals Court
As the basis for his appeal, the ex-husband argued there was not enough evidence to support the granting of neither the ex parte order nor the restraining order extension.
Applicable Legal Standard
In its decision, the Massachusetts Appeals Court stated a plaintiff seeking a restraining order must prove, by a preponderance of the evidence, that she or he is suffering from abuse. Abuse includes “‘placing another in fear of imminent serious physical harm.'” The Appeals Court added, “‘When a person seeks to prove abuse by fear of imminent serious physical harm, our cases have required in addition that the fear be reasonable.'” To determine reasonableness, the judge must consider the totality of the circumstances of the parties’ relationship. A history or a specific incident of physical violence is not necessary.
The Appeals Court deferred to the trial court’s determination that the ex-husband’s erratic and escalating behavior caused the ex-wife to fear for her safety. The remaining question was whether the fear was objectively reasonable.
Appeals Court Analysis
Regarding the trial court’s conclusion that the ex-wife’s fear was reasonable, the Appeals Court stated, “‘We cannot say that the judge erred in concluding that it was.’”
The Appeals Court reviewed the factual evidence the parties presented at the 10-day hearing. The court took particular issue with the ex-husband’s references to his gun, as well as his deliberately showing the gun to the children, all in the context of a parenting time dispute. Given the circumstances, the fact that the ex-husband expressed concern that the ex-wife might die unexpectedly was worrisome to the court, as well. Regarding other incidents, the Appeals Court agreed with the ex-husband that none of the ex-wife’s allegations, on their own, would support the issuance of a restraining order.
Even so, the Appeals Court considered the totality of the circumstances. In doing so, the Appeals Court agreed with the trial court’s decision. “We are satisfied that ‘[t]hese factors, taken together, in the context of the entire history of the parties’ hostile relationship, provided sufficient basis for the…extension of the protective order,'” the Appeals Court said.
The Appeals Court affirmed the trial court’s decision.
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