Obtaining and Defending Restraining Orders in Massachusetts
In Massachusetts people can obtain a restraining order under Massachusetts General Law (MGL) 209A, also referred to as an abuse prevention order, or under MGL 258E, also known as a harassment prevention order. Each has its own very specific requirements to obtain. Many people who are the victims of abuse or harassment benefit from these orders. However, it is all too common practice for the abuse of these orders, by individuals trying to gain leverage in pending Family Court cases or potential civil suits.
MGL 209A, abuse prevention order, allows a family or household member who is the victim of abuse to obtain from the District Court an order that orders the other party to refrain from abuse, to stay away and have not contact with the protected party, and to vacate the home or workplace.
First, it is required that the parties involved be family or household members. Family and household members are individuals who are or were married, are or were residing together in the same household, are or were related by blood or marriage, have a child in common, or are or were in a substantive dating or engagement relationship.
Second, a 209A order requires that abuse has occurred and defines abuse as attempting or causing physical harm, placing another in fear of imminent serious physical harm, or causing another to engage involuntarily in sexual relations by force, threat or duress.
209A abuse prevention orders can be obtained initially ex parte, that is without both parties present. Once the abuse order has been obtained the court will schedule a two party hearing within 10 days. At the two party hearing the court can grant an order that is up to one year in duration. If the party seeking the abuse order wants the order extended after the year is up they must appear on the one year date for an extension hearing. At the extension hearing the Court can extend the abuse order to a time period necessary to protect the party, this can include a permanent order being entered.
If you are not a family or household member MGL 258E allows for the court to grant a harassment prevention order if you have been the victim of harassment ordering the other party to “(i) refrain from abusing or harassing the plaintiff, whether the defendant is an adult or minor; (ii) refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or minor; (iii) remain away from the plaintiff’s household or workplace, whether the defendant is an adult or minor; and (iv) pay the plaintiff monetary compensation for the losses suffered as a direct result of the harassment; provided, however, that compensatory damages shall include, but shall not be limited to, loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement of locks, medical expenses, cost for obtaining an unlisted phone number and reasonable legal fees."
Additionally, MGL 258E defines harassment as “(i) 3 or more acts of willful and malicious conduct aimed at a specific person 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; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272."
If you have been a victim it is important to retain an attorney to aid you in obtaining either a 209A order or a 258E order. If the smallest detail is inadvertently left out you can be denied the very order that could protect you from serious harm from an abusive party.
Likewise, a false accusation to obtain either a 209A order or a 258E order against you can be detrimental. First, although these orders are civil and not criminal in nature, they will appear on your criminal record. Additionally, even the smallest of violations of any condition of the order can result in jail up to 2.5 years and up to a $5000 fine. It is not uncommon for individuals involved in a divorce or other family court matter to obtain an order against the other party and then make false accusations of criminal violations of the order to obtain leverage in the family court.
The only real recourse for issuance of a 209A order is by petitioning a Single Justice of the Supreme Judicial Court.
If you have been the victim of abuse or harassment or have been falsely accused you need to obtain legal representation as quickly as possible to protect your rights. Call the Attorney Newton at The Newton Law Firm today for a free consultation at 617-466-6068. David Newton, Esq.