What is an Emergency Restraining Order?
An emergency restraining order is issued by a Massachusetts judge for up to 10 days. Emergency restraining orders are issued after an ex-parte or one-sided hearing where the person seeking the order files an affidavit alleging abuse. An emergency restraining order can be issued by a judge over the phone. If a judge issues an emergency order over the phone it is valid until the court open the next business day.
Who Can Get a Restraining Order, or a 209A Order, in Massachusetts?
Judges can only issue a restraining order, or 209a, order where the plaintiff and defendant:
- were married to one another:
- are living or did live in the same household;
- are or were related by blood or marriage;
- have a child together,
- are or have been in a substantive dating or engagement relationship.
If the parties do not have a relationship outlined above, a judge cannot issue a 209a restraining order. However, there is no relationship requirement for 258e Harassment Order.
What is the Definition of Abuse in a Restraining Order Hearing in Massachusetts?
For a Massachusetts judge to issue a restraining order, otherwise known as an abuse prevention order, he or she must find “Abuse.” Abuse is defined as (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat or duress. If the judge not find that abuse has taken place he or she cannot issue the restraining order.
What Does a Masachusetts Restraining Order Do?
If a judge grants a restraining order the order, the order may:
- tell the defendant not to abuse the plaintiff;
- tell the defendant not to contact and stay away from the plaintiff;
- order the defendant to vacate immediately and remain away from the house, or workplace;
- Award the plaintiff temporary custody of a minor child;
- order the defendant to pay temporary child support;
- Make the defendant to pay compensation for losses suffered as a result of the abuse;
- order information be impounded;
- order the defendant to refrain from abusing or contacting the plaintiff’s child;
- recommend to the defendant that the defendant attend a batterer intervention.
Also, anyone who owns firearms must turn them over to their local police department.
Can a Judge Issue Mutual Restraining Orders?
A mutual restraining order is where both sides seek a restraining order. In only rare cases will a Judge in Massachusetts issue a mutual restraining order. In the case where a Judge issues a mutual restraining order they are required to make written findings. Mutual restraining orders are issued when both parties can convince a judge that they have suffered abuse, and both need an order of protection.
What happens at a Massachusetts Restraining Order Hearing?
Restraining order hearings are conducted before a judge. That means the courtroom will be open and people may be in attendance. Judges should not hold the hearing at sidebar because of safety concerns. At the hearing, the person seeking the order, the Plaintiff, has the burden of proof. That means they must convince a judge by a preponderance of the evidence that they are in fear of abuse. Both sides may offer testimony and evidence. Either side may call witnesses and cross examine on another. Judges will issue their ruling at the end of the hearing. A judge may either issue the order for up-to one year or they may decline to issue the order.
What is the Burden of Proof in a Massachusetts Restraining Order hearing?
The burden of proof is on the plaintiff to prove by a preponderance of the evidence that they need an abuse prevention order.
What does the Plaintiff need to show in order to get a Restraining Order?
A judge must find that the person seeking a restraining order has shown by a preponderance of the evidence that an extension of the order is necessary to protect him or her from the likelihood of ‘abuse’ as defined in G.L. c. 209A. In Massachusetts, a restraining order is a civil order with criminal penalties. Because it is a civil order a judge must use the civil standard in issuing a restraining order. The civil standard is proof by a preponderance of the evidence. Proof by a preponderance of the evidence is a standard less than proof beyond a reasonable doubt.
What is the Rule of Evidence in a Restraining Order hearing?
The Massachusetts rules of evidence are relaxed in restraining order hearings bout MattsRe. The civil rules of evidence relating to hearsay, best evidence or authenticity are flexibly applied in restraining order hearings. Judges are encouraged to consider fundamental fairness in making decision relating to evidence.
Can I ask or be asked questions in Court?
Yes. Both the Plaintiff (the one seeking the order) and the defendant (the one defending against the order) may ask questions. Cross examination is allowed as long as it is not being done to harass or intimidate the other side.
What happens if the Defendant Does Not Appear?
A Defendant forfeits their day in court if they fail to appear. Judges will hold the hearing and issue the order if the plaintiff meets their burden of proof.
What if the Defendant Does Not Testify?
Unlike in a criminal case if the Defendant does not testify the Judge may hold that against him or her.
What if the Plaintiff Does Not Appear at a Restraining Order Hearing?
If the Plaintiff does not appear the Massachusetts restraining order will expire at the date listed on the Order. If there is a reason the Plaintiff did not appear then the Judge could continue the hearing until a later date, no later than 10 days. Any decision to continue the hearing rests with the Judge.
How Long is a Massachusetts Restraining Order?
At the first two party hearing a Massachusetts may issue a restraining order for up to one year. It can be for less time if the plaintiff requests a shorter period or if the judge sees a reason to make it less than one year.
Can a Massachusetts Restraining Order be Permanent?
Yes, a restraining order can be permanent after one year. At the first hearing a judge may issue the Massachusetts 209A Order for up to one year. After one year there is another hearing scheduled. At the one year hearing a judge may make the restraining order permanent.
Can I Appeal a Restraining Order?
You can appeal a 209a order to the Appeals Court. There is nothing in the restraining order law that allows for an appeal after a hearing.
Massachusetts Restraining Order Attorney Patrick Donovan
Patrick Donovan is a former Massachusetts prosecutor who has appeared in over fifty Massachusetts court.
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