One of the tools most commonly used to combat domestic violence, even in those cases not reported to law enforcement, are Abuse Prevention Orders.
What is a Restraining Order?
The Abuse Prevention Law in Massachusetts, more commonly called a “restraining order”, “abuse prevention order”, or “209A order” is found under Massachusetts General Laws c. 209A.
Who Can Get an Abuse Prevention Order?
Under Chapter 209A, a family or household member suffering from abuse may file an application with the court for protection against:
- physical harm or attempted physical harm;
- fear of physical harm;
- and/or forced sexual relations.
The statute defines “family and household members” as persons:
- who are or were married to one another
- who are or were residing together in the same household
- who are or were related by blood or marriage
- who have a child in common even if they have never been married or lived together, or
- who are or have been in a substantive heterosexual or homosexual dating or engagement relationship.
- In determining whether there is a substantial dating relationship, the court will consider the length and type of relationship, the frequency of interactions between the parties, whether the relationship has been terminated by either party, and the length of time that has elapsed since the termination of the relationship.
Where Can I Get an Abuse Prevention Order?
You may obtain a restraining order at a district, Boston municipal, superior, or probate and family court. However, if you are alleging to be in a substantive dating relationship with the abuser you may not apply for a restraining order in the superior court. Most commonly restraining orders are initially obtained at a district court due to their accessibility. In addition, district courts often have resources for victims of abuse, such as Victim Witness Advocates who are attorneys employed by the District Attorney’s Office or volunteer Domestic Violence Advocates who are trained to assist the plaintiff in this process. You may apply for a restraining order in the district court where your residence was located when the abuse occurred or your current residence if you have fled the abuse.
How Do I Obtain An Abuse Prevention Order?
There are two ways to obtain an Abuse Prevention Order. The first is to go to any of the above-mentioned courts during business hours and fill out an Application for Abuse Prevention Order in the Clerk’s Office. As part of this application, the plaintiff fills out is an affidavit, which should state the facts and circumstances of the most recent incident of abuse as well as any past history of abuse. The plaintiff should also make sure to note in their affidavit any history of abuse involving weapons, prior restraining orders, alcohol or substance abuse, manipulative, controlling, blaming or possessive behavior, as well as the defendant’s denial or minimization of abuse.
After filling out the Application for an Abuse Prevention Order, the plaintiff will be heard by the judge, even though the defendant is not present. If the judge finds by a preponderance of the evidence based upon the written affidavit and sworn testimony of the plaintiff that there is a substantial likelihood of immediate danger of abuse, the court will issue a 10-day temporary restraining order. The plaintiff will keep a copy of this order and the police department will be provided with a copy of the order. The police department will be responsible for serving the defendant with their copy of the order. The order will notify the defendant of their right to be heard at the 10-day hearing. The plaintiff must be present at the 10-day hearing or the order will be vacated. The defendant may choose whether or not to attend the 10-day hearing. However, if the defendant does not attend the order will be extended. At the 10-day hearing, the judge may extend the order for any length of time up to one year. The judge will set another hearing date at that time and the plaintiff must return on that date in order to extend the order for another period of time or request the judge make the order permanent.
The second way to obtain an Abuse Prevention Order occurs if the abuse occurs after court hours, on holidays or weekends. An emergency Abuse Prevention Order can be obtained through the police department or through police response to an emergency. The police will telephone the on-call judge who will speak with the plaintiff and decide whether or not to grant an emergency restraining order. If an emergency order is issued, the victim must appear in district court the next business day to formally apply for a restraining order and follow the same process as detailed above.
The plaintiff should remember to always keep a copy of the Abuse Prevention Order with them in case they need police assistance.
What Remedies Does an Abuse Prevention Order Provide?
If the judge grants the an Abuse Prevention Order the judge can order the abuser to:
- refrain from further abuse of the victim;
- refrain from contacting the victim directly or indirectly;
- move out of the residence shared with the victim and/or stay away from the victims residence, place of work, or family’s house;
- temporarily relinquish custody of any minor children;
- pay temporary support to the victim and/or minor children where defendant has a legal obligation to support them or pay expenses related to the marital residence;
- to pay the victim for any money lost as a result of the abuse (ex. Medical bills, lost wages, etc.);
- to surrender keys to the house; and/or
- to refrain from abusing the plaintiff’s minor children.
Abuse Prevention Orders and the Probate and Family Court
The Probate and Family Court has superseding authority over the Boston municipal, superior court, and district courts when it comes to abuse prevention orders, child visitation orders, and custody orders. Even if a restraining order is obtained in the district court, Boston municipal court, or the superior court, the probate and family court is able to modify, extend or vacate the 209A order. For example, if you obtain a restraining order in the district court and the judge orders the defendant not contact you or his children, the probate court judge can modify this order so that the defendant can call the children or have visitation time with the children. If there is a restraining order in place, the children will be exchanged between the parents at a police station due to the obvious safety concerns.
Judges must also consider evidence of domestic violence, including Abuse Prevention Orders, when making decisions regarding child custody and visitation. The court will consider past or present abuse toward a family or household member as a factor contrary to the best interests of the child.
Unfortunately, there are situations where one party will try to gain an advantage in a divorce or custody case by obtaining an Abuse Prevention Orders under false pretenses. If you have been falsely accused of domestic violence and served with a restraining order, it is in your best interest to retain an attorney to represent you to protect and defend your rights.
If you are the victim of domestic violence, there are resources available:
Middlesex County Area – Domestic Violence Services Network: 888-399-6111
Norfolk County Area – Domestic Violence Ended: 888-314-3683
If you or someone you know needs assistance with a case involving domestic violence or a restraining order, please contact one of the Massachusetts divorce and family law attorneys at The Divorce Collaborative at (508) 346-3805.
Remember, your safety is the first priority!
Massachusetts restraining order and domestic violence lawyers serving the Bedford, Concord, Lexington, Billerica, and Chelmsford areas, and the Franklin, Medfield, Medway, Milford, Millis, Walpole, Foxboro, Norfolk, and Wrentham.