Written by attorney Michael H. Erlich

What happens when a 209A restraining order is scheduled to expire?

A 209A order can be extended for any amount of time but the typical order is usually if the facts warrant extended for 1 year. If neither party appears or the plaintif does not seek an extension, the order expires as a mater of law. But what happens if it is contested? In Banna v. Banna, defendant argued, unsuccessfully, in the District Court, against the extension of an ex parte abuse prevention order issued pursuant to G. L. c. 209A, which required him to refrain from abusing the plaintiff, his sister.

On appeal, the defendant arugued that the evidence was insufficient to support a finding of abuse as contemplated by the statute, and that the judge below deprived him of his constitutional right to due process and his statutory right to a hearing pursuant to G. L. c. 209A, § 4, by extending the order for one year without conducting an evidentiary hearing. A hearing was scheduled before the same judge to determine whether the order should be extended. At the hearing with both party's presetn , the judge simply asked the plaintiff if she wanted him to extend the order, and she said, "Yes." That is not enough. Simply asking the complainant whether she wanted to extend the order was not enough. Because there was thus no basis on which the judge could determine whether the extension of the restraining order should be granted, the order in that case was vacated. There was no evidence other than the affidavit before the judge at the extension hearing. The judge did not question the current state of affairs as of the time of that hearing.

Therefore, to extend an abuse prevention order, the plaintiff must "make a showing similar to that of a plaintiff seeking an initial order -- most commonly, the plaintiff will need to show a reasonable fear of imminent serious physical harm at the time that relief, whether in the form of an original order or an extension of an order, is sought." Most importatnly no presumption arises from the fact that a prior order has issued and should have no bearing on whether to extend the present order.

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