Defending Yourself against a Restraining Order or Protective Order in Massachusetts
If you suspect you may be served with a restraining order by a family or household member, you should know what to expect and what is expected of you. Here are common questions regarding restraining orders and answers that may help you defend yourself if necessary.
Will I know if a restraining order will be issued against me?
You will not know if a restraining order is issued against you. The initial restraining order can be issued ex-parte, meaning the person who claims that he or she is in fear of bodily harm can get an order against you without your having the right to be heard. You will not be officially notified of a restraining order until you are served. The court will not hold a 10-day hearing until it receives a return of service notifying that you have been made aware of the 10-day hearing. You cannot violate a restraining order if you have not been properly served.
Who can obtain a restraining order?
Anyone who claims to be in "imminent fear of bodily harm" can attempt to obtain a restraining order. A judge can issue a restraining order against anyone who qualifies as a family or household member. People are considered family or household members if they:
- are or were married to one another,
- are or were living together in the same household,
- are or were related by blood or marriage,
- have a child in common,
- have been dating or engaged. The court looks at the following factors when qualifying this: length of relationship, type of relationship, frequency of interaction during relationship, and time passed since termination of relationship.
If the person who got a restraining order against you does not fall into one of the above categories, the restraining order is not legal. This is an issue to be brought up at the 10-day hearing.
What happens if I get served?
If you are served with a restraining order, it means that someone has gone to court and told the judge he or she is in fear of you. This initial order is valid only until the hearing. The hearing is usually 10 days after the ex parte hearing; however, if you have not been served, the court will postpone the hearing until you have been served.
Once you are served, you must appear at court on the assigned date and time. At the hearing, you will have an opportunity to tell the judge why the restraining order should not be issued. You can cross-examine the plaintiff regarding his or her claims against you. However, you should be careful that you do not incriminate yourself at the hearing (for example, do not provide information about hitting, punching, slapping, threatening, or doing anything else that would have placed the plaintiff in fear of bodily harm). This is especially important if you have criminal charges pending against you.
You have a right to a lawyer at this hearing, and you may also bring witnesses. You or your lawyer can cross-examine the person who is seeking the restraining order against you to show that the person is not in fear of you. Your lawyer can speak on your behalf.
In the interim, abide by the restraining order. Even if the plaintiff claims he or she does not plan to go forward with the order, it's your record and your future at stake.
Some things to think about at this hearing:
- Be careful about what you say. You are under oath and being recorded, so any statement you make can be used against you at a future court date.
- Be on your best behavior.
- Dress appropriately for court.
- Avoid all contact with the plaintiff while you are in court. Stay away and try to prevent a confrontation.
Will a restraining order show up on my criminal record?
A restraining order will appear on your criminal record. Although a restraining order is a civil order, whenever someone runs your record for probation, employment, or immigration purposes, it will show that someone had or has a restraining order against you.
Abiding by the restraining order
While you await your hearing, abide by the restraining order. All it takes is one phone call, one drive by, or one text message to be charged with a violation. If you get arrested for a violation, the police will hold you until the next court date. If you are not a citizen of the U.S., a restraining order violation (the criminal charge) can affect whether you can become a citizen or even remain in the U. S. If you are charged with a violation of 209A, you should contact a criminal attorney and an immigration attorney immediately.
However, simply having a restraining order issued against you should not affect your employment, probation, or immigration status.