How do I file a 209A Restraining Order?
There are several important things to know and to consider when applying for abuse prevention orders – or, in layman’s terms, restraining orders – in Massachusetts.
The issuance of an abuse prevention order is governed by G.L. c. 209A. The statute is clear that only “a person suffering from abuse from an adult or minor family or household member may file a complaint in the court requesting protection from such abuse.” So, what does this mean?
You Must be Suffering From Domestic Abuse
“Abuse” is defined in the statute as the occurrence of one or more of the following acts between family or household members:
- attempting to cause or causing physical harm;
- placing another in fear of imminent serious physical harm;
- causing another to engage involuntarily in sexual relations by force, threat or duress.
While the first and the third are somewhat simple definitions, the second is a bit more complicated. Case law has held that generalized apprehension, nervousness, aggravation, or feeling hassled is simply not enough to meet the definition, and the issuance of an abuse prevention order is not warranted under those circumstances. You have to be able to present evidence to the court that your fear that the abuser may use force to seriously physically harm you is reasonable under the circumstances.
The Abuser Must Be a Family or Household Member
However, “family or household member” is more expansive than it implies. It covers someone:
- Who is related to you by blood or marriage (even a past marriage),
- Who is or was residing in the same household,
- Who is or has been in a substantive dating or engagement relationship with you
- With whom you have a child in common – regardless of whether you have ever married or lived together.
G.L. 209A was enacted to address the problem of domestic abuse through the provision of judicial remedies and the expansive definition of “family or household” member is in furtherance of that purpose.
You Must File a Complaint With Affidavit at the Court
There is no filing fee. A G.L. c. 209A restraining order can be filed in the Probate and Family Court or District Court, in the county where the petitioner lives.
In accordance with G.L. c. 209A, a court is authorized to do several different things, including ordering the abuser to:
- Stop abusing you,
- Refrain from contacting you,
- Vacate your home immediately,
- Stay away from you and/or your home, school, and workplace.
The court can also award you temporary custody of a minor child. Finally, you can also ask the court to order the above relief without advance notice to your abuser if you can prove there is a substantial likelihood of immediate danger of abuse. If an order is granted, within ten business days after the court orders this ex-parte (without the other party) relief, there will be a two-party hearing to determine whether this temporary order should be extended. The other party will receive notice of this hearing and you must attend this hearing if you wish the order to continue.
With the complaint, anyone asking for restraining orders in Massachusetts must also fill out an affidavit explaining, in writing, why the court’s protection is necessary. This document must be signed under the penalties of perjury, which is a promise to tell the truth.
What If I Have Been Wrongly Accused of Domestic Abuse? How Do I Defend Against a Restraining Order?
Once you have been served with a restraining order, make immediate note of the date when the court has scheduled your next hearing. A restraining order is serious, and violating a restraining order is a criminal offense. You have the right to know what has been alleged, and the right to be heard to defend yourself. The plaintiff will go first at a hearing, and has the burden to prove there is a risk of harm. You may present evidence on your behalf, including witnesses. Parties often provide very different versions of the same incident or event, and the judge must decide who to believe and whether the plaintiff has met the necessary burden to obtain a restraining order in Massachusetts.
Don’t go it alone! Contact the family law attorneys at Mason & Nasios in Plymouth County to help you defend against a restraining order.
How Do I File a Harassment Order?
Unlike G.L. c.209A restraining orders, with a harassment order, you do not need a qualifying relationship with the person you are seeking the order against. Neither order requires a filing fee. The issuance of a harassment prevention order is governed by G. L. c. 258E.
A person suffering from harassment may file a complaint requesting protection from such harassment. A plaintiff must demonstrate three or more acts of willful and malicious conduct committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property. Simply, this means that on at least three occasions, the person you are seeking the order against acted on purpose with cruelty, hostility or revenge to cause you fear, to cause or attempt to cause you physical harm or cause you to fear imminent serious physical harm, and this person’s actions then did in fact cause you fear, intimidation, abuse or damage to property.
A harassment order may include an order that the defendant refrain from abusing or harassing you, refrain from contacting you, unless there are exceptions authorized by the court, remain away from your household or workplace, and/or pay you monetary compensation for the losses suffered as a direct result of the harassment.
To Obtain or Defend Against Restraining Orders in Massachusetts, Contact the Experienced Family Lawyers at Mason & Nasios Today
No one should ever feel unsafe or threatened. Massachusetts General Laws, chapters 209A and 258E, afford protection against behavior that is abusive and harassing. If you want to find out more about harassment orders and restraining orders in Massachusetts, the family lawyers at Mason & Nasios can help. We help clients across Southeastern Massachusetts and can provide advice and guidance to victims of domestic abuse and harassment – including emergency situations that demand an immediate response – as well as to those who have been accused/named as defendants in restraining order matters. Schedule a consultation at our offices in Brockton, Massachusetts and let us help you.