Restraining Orders - Defense and Offense
Each year thousands of restraining orders are issued based entirly on "he said, she said" scenarios. The courts view this as a non-criminal, civil order and thus have a tendency to issue them to be on the safe side. However, often alleged victims use this opportunity to have the person removed from the household, or as a spring board later on to call the police and have the person arrested for violation of the original restraining order.
So what does a person do to defend themselves?
Consult an expert restraining order defense attorney
After the application is filed, a temporary restraining order hearing will be scheduled by the court within 10 days of receiving notice. At this hearing the court will determine whether the order should be extended for 1 year or not.
Consider filing a counterclaim application immedately after receiving notice for a 209A or 258E. Make sure you only do so if you feel your the victim here. You must be in imminent danger of physical abuse, a victim of a criminal threat or a victim of repeated harassment (harassement requires a minimum 3 or more documented incidents). Bring a witness, photos social media posts or text-email messages that can prove your the victim, not the offender.
Also, note proper case law such as under: Szymkowski v. Szymkowski, 57 Mass.App.Ct. 284, 782 NE2d 1085 (2003) - "Court should not issue an M.G.L. Ch. 209A order simply because it seems to be a good idea or because it seems it will not cause the defendant any real inconvenience as a Ch. 209A order will infallibly cause inconvenience; in considering whether to issue a Ch. 209A order, the judge must focus on whether serious physical harm is imminent, and a generalized apprehension does not rise to the level of fear of imminent serious physical harm."
Having discussed the defensive position, you may find yourself in a situation where your saftey really is in jeapordy and the use of a restraining order is neccessary.
Here's what to do:
If your in danger or being physicall abused, call 911 to report it. Police reports can be used later on in civil restraining order cases and often times the judge have no other form of evidence beyond the typical "he said-she said" scenario. However, please note that in any police response to a domestic violence situation, someone is likely going to be arrested. With no witnesses or evidence of injury to prove your case, you could very well end up the one being arrested! So use it only if your in fear of immiment bodily injury or if you have in fact been physcially abused in some way.
Consult with an expert restraining order attorney
A temporary hearing will be set up wihtin 10 days to give the defendant a chance to tell his side of the story. Bring witnesses, photos of injury, emails/texts, anything that can show you are in "immnent" danger of being abused, or threatened with bodily injury. If your a victim of criminal harassment only, then you will need to provde evidence of a minimum of (3) documented occasions of being harassed.
If your story is credible even with no witnesses and you indicate the keywords required under the statute, then the judge will likely issue the order for up to 1 year. The law states under Chapter 209A, section 4 the following: "If the plaintiff demonstrates a substantial likelihood of immediate danger of abuse, the court may enter such temporary relief orders without notice as it deems necessary to protect the plaintiff from abuse....."
So be ready to demonstrate why you feel your in immiment danger of being abused such as past abuse, dates, witnesses, photos, ect. If you go in an say.."I'm scared of him/her.." or "he/she yelled at me", or "they pushed me 2 weeks ago". These words are not likey to result in a court issuing a restraining order.