Restraining Orders
Defense Against Restraining Orders and Violations
The following summary applies only to restraining orders sought or granted in District Court, pursuant to G.L. c. 209A and G.L. c. 258E.
Domestic Violence Restraining Orders: MGL c. 209A
In Massachusetts, most restraining orders sought for protection are governed by Massachusetts General Laws chapter 209A. Under G.L. c. 209A a "family or household member" who claims to have suffered abuse can apply to the appropriate District Court for a restraining order to protect her against the actions of an alleged abuser. If the alleged victim is neither a family member nor household member of the alleged abuser, the alleged victim must apply to the Superior Court for injunctive relief.
A restraining order gives the recipient enormous power over you. Contact Boston criminal defense attorney Steven J. Topazio to protect your rights.
Harassment Prevention Orders: MGL c. 258E
A new law was passed by the Massachusetts Legislature on February 9, 2010, providing more options for persons that are being harassed to obtain a restraining order. The new law, Chapter 258E of the General Laws, provides the ability for the Superior Courts, Boston Municipal Court, District Courts, and Juvenile Court to issue Harassment Prevention Orders.
The definition of abuse under Chapter 209A and harassment under Chapter 258E is different, therefore a party that may not meet the standard to have an order enter under Chapter 209A, may now able to get an order under Chapter 258E. Although the proceedings under Chapter 258E are civil in nature, a violation of the order is criminal, the same as under Chapter 209A. A violation of an order under Chapter 258E can result in a fine of not more than $5,000.00, imprisonment in a House of Correction for up to 2 1/2 years, or both.
If one is being harassed, which is defined 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″, one can now apply to the court for a harassment prevention, regardless of the presence of any family relationship.
Contact Boston Criminal Defense Attorney Steven J. Topazio if you need protection from stalking, harassment or abuse.
What is a Restraining Order?
In Massachusetts, a restraining order is a civil court order signed by a judge that helps people when confronted with various types of abuse. An alleged victim seeking relief pursuant to G.L. c. 209A or G.L. c. 258E is initiating civil, not criminal, proceedings, against the alleged abuser. This is true, even if the alleged abuse is also being prosecuted criminally. A violation of a valid restraining order however, is a criminal offense. As in most civil proceedings, the party initiating the process, the alleged victim, is referred to as the plaintiff and the responding party, the alleged abuser, is referred to as the defendant.
Once the plaintiff (person requesting restraining order) files a restraining order and it is issued and properly served on the defendant (alleged abuser), the abuse or harassment should stop because any violation of the civil restraining order is a criminal violation subjecting the abuser to arrest and possible detention and incarceration.
Ex-Parte Hearing for a Temporary Order
Most plaintiffs who need the court's protection will appear in court by themselves to seek a restraining order because they are in imminent fear of harm. The practice in Massachusetts is to allow the plaintiff to testify before a judge without notice to the defendant in what is known as an ex parte hearing. The purpose is to immediately issue a restraining order.
At the ex parte hearing, the plaintiff files an affidavit outlining the alleged abuse for the court. The court reads the affidavit and hears only from the plaintiff or her lawyer, but not the defendant, at this time. Not only is the defendant not present, he is not notified of the ex-parte hearing, cannot contest what is being told to the court at that time. He or she can only challenge the plaintiff's version of the facts at the hearing for the permanent order which usually occurs ten days after the issuance of the temporary order. If the judge finds that the plaintiff has demonstrated, by a preponderance of the evidence (i.e., more likely than not) that the existence of a substantial likelihood of immediate danger of abuse will occur to the plaintiff, then the court will issue a temporary ten-day restraining against the defendant.
Restraining Orders Are Issued to Prevent the Restrained Person From:
- Annoying, harassing, striking, following, or disturbing the peace of the protected person(s).
- Having direct or indirect, personal, telephonic, electronic, or written contact with the protected person(s).
- Coming within 100 feet of the protected person(s) - place of work, residence, or school.
Hearing for a "Permanent" Order
Hearings for permanent restraining orders are held only after notice to the defendant. This is the defendant's first opportunity to oppose the plaintiff's application for a year-long restraining order. The defendant will be allowed to offer testimony and to cross-examine the plaintiff. Both parties may call supporting witnesses to testify.
The hearing is a civil proceeding that is conducted in an informal manner where the rules of evidence are not strictly enforced. The defendant is under no obligation to attend this hearing but if the plaintiff appears and he does not, the permanent order usually always issues. If the plaintiff does not appear before the court to request that the restraining order be extended, the temporary order will expire by close of business that day. If the defendant attends the hearing however he is under no obligation to testify as anything that he might say could be used against him.
Most restraining orders are supported by affidavits which allege physical harm which could result in criminal charges being filed against the defendant. If criminal charges have been filed or could be filed against the defendant, then it is advisable that the defendant invoke his 5th Amendment Right not to testify so as to avoid incriminating himself. Any statements that he makes in court could be used against him by the assistant district attorney in the later criminal proceeding. The better practice is for the defendant to be represented by an attorney who can speak for him.
The attorney can speak on the defendant's behalf and can examine the plaintiff and the affidavit that the plaintiff submitted in support of her application. During effective cross-examination, a criminal defense attorney can elicit facts from the plaintiff that may prove useful later at trial and might make the difference between success or failure in a subsequent criminal proceeding.
To protect your rights, contact Boston Criminal Defense Attorney Steven J. Topazio for a free consultation.
Restraining Order Violations
Once a restraining order has been issued by the court, whether temporary or permanent, and any condition is violated, the violation is treated as a criminal matter that could result in serious consequences, including jail time. A violation of a 209A or 258E order may result in incarceration of up to 2 1/2 years in the house of correction as well as a $5,000.00 dollar fine.
What Are Your Rights?
The defendant (person receiving notice of the Restraining Order) can be found to have violated a restraining order; he must be officially given notice (served) with a copy of the restraining order. Being served a Restraining Order means formal copies of the Order have been personally delivered to the defendant, usually by the local police. If the defendant is served with a copy of the temporary order, then this is his opportunity to respond to the allegations made by the Plaintiff.
The defendant will have 10 days before the hearing for the permanent order is scheduled with the Court. A hearing is needed for a judge to determine whether to extend the temporary restraining order by making it permanent or to vacate it. Arriving at the hearing early, prepared and with your attorney will ensure the best possible outcome for your case.
Once a restraining order has been issued, it is important that the person listed upon the order understands and complies with all of the order's terms. A restraining order can require a defendant to:
- Refrain from abusing the plaintiff
- Refrain from contacting the plaintiff, either directly or indirectly
- Move from a shared residence
- Stay away from the plaintiff's residence and/or workplace
- Stay away from the plaintiff's person
- Temporarily relinquish custody of minor children
- Surrender to the police any weapons
- Pay temporary financial support to the plaintiff and/or minor children.
Appeal of the Issuance Of a 209A Restraining Order
- The only way to challenge the issuance of a 209A restraining order is by petitioning a single justice of the Supreme Judicial Court for relief pursuant to G.L. c. 211, §3.
An Attorney Makes All the Difference
If someone is seeking a restraining order against you, you should strongly consider retaining an experienced criminal defense lawyer to represent you at the hearing.
While a restraining order is a civil order, it will appear on your CORI (criminal record). A restraining order gives the recipient enormous power over you; the complainant need only telephone the police to report having seen or spoken with her to have you arrested - which if true, of course, is a crime. Moreover, if you have already been arrested because the complainant accused you of domestic assault and battery or some other crime, the hearing on the restraining order may be your lawyer's only chance to cross-examine the complainant. Such an opportunity may prove critical to your defense. Although you do not need to have an attorney to file a restraining order or defend against a restraining order, representing yourself is a risk and puts you at a huge disadvantage.
Comprehensive Investigation and Case-Building
Being prepared with an attorney from the start is the smartest and most cost-effective way to handle your restraining order. Boston criminal defense attorney Steven J. Topazio will ensure that all of the proper documents have been filed, knows how to handle the judge's questions, and will not be caught off-guard by any unusual circumstances. Call his Boston law office at 617-422-5803 or email him to schedule a free consultation.
RECENT CASE DECISIONS
December 08, 2011
West Roxbury District Court
Docket # 1106RO0742
Application for Abuse Prevention Order, MGL c. 209A
The client, a 25 year old, received an application for issuance of a permanent abuse prevention order from her mother who called police alleging that her daughter/client threatened to punch her mother’s teeth in, hired Attorney Topazio to represent her. Attorney Topazio continued the hearing date on the issue of whether a permanent order should issue so as to prepare a defense and to investigate his client’s case. Attorney Topazio discovered that his client’s father had died one month prior to the alleged incident and that the client’s mother, who was divorced from the decedent, had been attempting to manipulate the client so as to come into control of the decedent’s estate. Attorney Topazio obtained documentation supporting his client’s position that the mother was retaliating against the client by seeking a restraining order because the client stood up to her mother. Today, Attorney Topazio argued that despite the alleged threatening comments made by his client to her mother that the parties remained together for the remainder of the day without fear and without further incident. Attorney Topazio argued that the petitioner only applied for a restraining order after a second argument so to retaliate against her daughter who called the mother a “money grubbing B****” because the daughter refused to allow the mother to pilfer her father’s estate. Attorney Topazio was successful in persuading the court to deny the restraining order by establishing that the petitioner was not in fear of imminent bodily harm.
Result: Request for issuance of Permanent Restraining Order denied.
October 07, 2011
Cambridge District Court
Docket No: 1110RO0512
Harassment Prevention Order c 258E
The Client, a 29 year old graduate student, received a notice for a hearing on a complaint for issuance of an Harassment Prevention Order, hired Attorney Topazio. In order to establish grounds to issue an Harassment Order, a party must prove that 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. The client and the petitioner lived in different apartments of a three family building. When a dispute arose between the two of them regarding the client alleging the petitioner stole property from the client, their relationship quickly deteriorated. The client went to the petitioner’s place of employment on two occasions in an attempt to confront the petitioner. On a third occasion, the petitioner claimed the Client followed him in his vehicle so as to harass him. In an attempt to create a cooling off period, Attorney Topazio continued the initial hearing when he learned the Client filed a notice to quit with her landlord and would move out of the building where both parties lived by the end of the month. In requesting the continuance, Attorney Topazio pointed out to the Court that the tension between the parties might end if his client no longer would be in a situation to see the petitioner, thereby rendering the petitioner’s request for a Harassment Order moot, and the Court agreed. Today, the complaint against the Client was dismissed and no order issued.
Result: Case dismissed
May 18, 2011
Suffolk Probate Court
Application for Restraining Order
Application for Restraining Order M.G.L. c. 209A
The defendant, who had been married for only seven months, received notice of an Abuse Prevention Order filed against him by his wife, hired Attorney Topazio. Attorney Topazio obtained a copy of the supporting affidavit which supported the Temporary Restraining Order and learned that the complainant was placed in fear from several incidents of alleged physical abuse attributed to the defendant. The hearing to issue a restraining order is a civil proceeding that is conducted in an informal manner where the rules of evidence are not strictly enforced. The defendant is under no obligation to attend this hearing but if the plaintiff appears and he does not, the permanent order usually always issues. If the defendant attends the hearing however he is under no obligation to testify as anything that he might say could be used against him. Most restraining orders are supported by affidavits which allege physical harm which could result in criminal charges being filed against the defendant, as was the case here. If criminal charges have been filed or could be filed against the defendant, then it is advisable that the defendant invoke his 5th Amendment Right not to testify so as to avoid incriminating himself.
To avoid the possibility of criminal charges being issued against his client, Attorney Topazio contacted opposing counsel and negotiated a resolution of the conflict whereby he suggested that if both parties would enter into counseling in an attempt to repair their marriage, and that the no contact portion of the restraining order is dropped, his client would agree to the issuance of the restraining order but only for a period of time less than one year. Hearings for permanent restraining orders are generally for a year-long period. At the hearing, Attorney Topazio was effective in persuading the court to order a no abuse order only for a period of five (5) months, despite opposing counsel’s request that the no abuse order be issued for one (1) year.
Result: Restraining Order issued for five months for no abuse only, no contact provision vacated.
March 28, 2011
Brockton Probate Court
PL11RO074AB
Abuse Prevention Order, M.G.L. c. 209A
Enforce foreign Judgment
Full faith and credit clause, Article 4, s. 1, of the US Constitution
The defendant, a resident of Red Wing, Minnesota, was served with a copy of the restraining order on March 2, 2011, after his girlfriend left the state with their infant child and came to Massachusetts, hired Attorney Topazio to represent him. Attorney Topazio continued the return date on the temporary restraining order because his client had filed a paternity action in Minnesota, requesting, among other things, custody of his minor child. Attorney Topazio was aware that Minnesota was the proper jurisdiction within the contemplation of the Uniform Child Custody Jurisdiction and Enforcement Act to enter an order regarding the custody, care, and control of the parties’ minor child. The continuance allowed Minnesota to enter an order adjudicating the defendant the father of the minor child and granted him temporary sole legal and sole physical custody. Attorney Topazio next filed an emergency order in the Probate Court requesting the court to enforce the foreign judgment and advanced the hearing on the temporary restraining order. Today, after a full hearing, Attorney Topazio convinced the court not to extend the Restraining Order against his client and caused the Massachusetts Probate court to enforce the foreign judgment, arguing that the Full faith and credit clause, Article 4, s. 1, of the United States Constitution provides, in part, that "[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." Attorney Topazio pointed out that the Full faith and credit requires that Massachusetts give to the judgment of the Minnesota court the same finality that it would receive in Minnesota, and the Massachusetts court agreed. As a result, the Probate court further ordered that the mother return the child to the father who was allowed to leave Massachusetts and to return to Minnesota with his child.
Result: Temporary Restraining Order vacated and foreign judgment enforced. Mother ordered to return infant child to the father, and both father and child were allowed to return to Minnesota.
August 19, 2010
Milford District Court
1066CR0676; 1066CR0687; 1066CR0853
Abuse Prevention Order, Violate, M.G.L. c. 209A § 7
Threat to Commit Crime, M.G.L. c. 275 § 2
Intimidate a Witness, M.G.L. c. 268 § 13B
Stalking in violation of Restraining Order, M.G.L. c. 265 § 43(b)
The defendant, who was a recovering addict, suffered a drug relapse after he lost his job of several years; experienced the trauma of his substance abuse counselor dying two weeks prior to his arrest, then relapsed when his girlfriend left him with their infant daughter and obtained a restraining order against him. During the drug relapse, the defendant was arrested for violating the restraining order after threatening to kill his girlfriend. The defendant hired Attorney Topazio to represent him. Due to the strength of the Commonwealth’s cases, on June 17, 2010 the defendant plead guilty to dockets 1066CR0676 alleging, among other things, a violation of an abuse prevention order in violation of ch. 209A § 7 and 1066CR0687 alleging, among other things, a violation of an abuse prevention order in violation of ch. 209A § 7. Following the defendant’s plea, the Commonwealth brought an additional charge against him alleging stalking in violation of G.L. c. 265, §43(b), a violation of which carries a mandatory minimum term of imprisonment of one year. "To establish the crime of stalking in violation of G.L. c. 265, §43(a), the Commonwealth must prove that the defendant '(1) willfully and maliciously engage[d] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarm[ed] or annoy[ed] that person and would cause a reasonable person to suffer substantial emotional distress, and (2) [made] a threat with the intent to place the person in imminent fear of death or bodily injury.' To establish the aggravated form of stalking at issue in this case, §43(b) (stalking in violation of court order), the Commonwealth must prove both a pattern of conduct constituting stalking under §43(a) and that the conduct violated (in this case) a 209A order that was in effect.” Attorney Topazio filed a Motion to Dismiss the charge and submitted a memorandum of law in which Attorney Topazio alleged that his client cannot be tried on the new charge due to double jeopardy grounds. The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy in life or limb. The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) "It protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” Attorney Topazio argued that to establish the aggravated form of stalking, §43(b) (stalking in violation of court order), the Commonwealth must prove both a pattern of conduct constituting stalking under §43(a) and that the conduct violated (in this case) a 209A order that was in effect. Attorney Topazio pointed out to the Court that the Commonwealth, however, is relying on the same conduct previously the subject of his client’s convictions of violating the 209A order under dockets 1066CR0676 and 1066CR0687, and could not be tried on the aggravated offense because it violates the Double Jeopardy Clause. Today Attorney Topazio convinced the court to allow his motion to dismiss the complaint against his client.
Result: Case dismissed by the court finding that a prosecution violated the Double Jeopardy Clause.
June 17, 2010
Milford District Court
1066CR0676; 1066CR0687; 1066CR0853
Abuse Prevention Order, Violate, M.G.L. c. 209A § 7
Threat to Commit Crime, M.G.L. c. 275 § 2
Intimidate a Witness, M.G.L. c. 268 § 13B
Stalking in violation of Restraining Order, M.G.L. c. 265 § 43(b)
The defendant, who was a recovering addict, suffered a drug relapse after he lost his job of several years; experienced the trauma of his substance abuse counselor dying two weeks prior to his arrest, then relapsed when his girlfriend left him with their infant daughter and obtained a restraining order against him. During the drug relapse, the defendant was arrested for violating the restraining order after threatening to kill his girlfriend. The defendant hired Attorney Topazio to represent him. Due to the strength of the Commonwealth’s cases, on June 17, 2010 the defendant plead guilty to dockets 1066CR0676 alleging, among other things, a violation of an abuse prevention order in violation of ch. 209A § 7 and 1066CR0687 alleging, among other things, a violation of an abuse prevention order in violation of ch. 209A § 7. Following the defendant’s plea, the Commonwealth brought an additional charge against him alleging stalking in violation of G.L. c. 265, §43(b), a violation of which carries a mandatory minimum term of imprisonment of one year. "To establish the crime of stalking in violation of G.L. c. 265, §43(a), the Commonwealth must prove that the defendant '(1) willfully and maliciously engage[d] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarm[ed] or annoy[ed] that person and would cause a reasonable person to suffer substantial emotional distress, and (2) [made] a threat with the intent to place the person in imminent fear of death or bodily injury.' To establish the aggravated form of stalking at issue in this case, §43(b) (stalking in violation of court order), the Commonwealth must prove both a pattern of conduct constituting stalking under §43(a) and that the conduct violated (in this case) a 209A order that was in effect.” Attorney Topazio filed a Motion to Dismiss the charge and submitted a memorandum of law in which Attorney Topazio alleged that his client cannot be tried on the new charge due to double jeopardy grounds. The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy in life or limb. The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) "It protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” Attorney Topazio argued that to establish the aggravated form of stalking, §43(b) (stalking in violation of court order), the Commonwealth must prove both a pattern of conduct constituting stalking under §43(a) and that the conduct violated (in this case) a 209A order that was in effect. Attorney Topazio pointed out to the Court that the Commonwealth, however, is relying on the same conduct previously the subject of his client’s convictions of violating the 209A order under dockets 1066CR0676 and 1066CR0687, and could not be tried on the aggravated offense because it violates the Double Jeopardy Clause. The court took the motion under advisement.
Result: Case pending decision of court.
May 20, 2010
Somerville District Court
1010RO0168
Application for Restraining Order M.G.L. c. 209A
The defendant, who had been divorced for several years, received notice of an Abuse Prevention Order filed against him by his ex-wife, hired Attorney Topazio. Attorney Topazio obtained a copy of the supporting affidavit which supported the Temporary Restraining Order and learned that the complainant was placed in fear from phone calls attributed to the defendant. Attorney Topazio had his client compile six months of his phone records and verification of his whereabouts for the time in question, in anticipation of the Court hearing. At the hearing, Attorney Topazio was effective in persuading the court to rule that there was insufficient evidence in the plaintiff’s affidavit to support issuance of the permanent order.
Result: Restraining Order vacated.
October 15, 2009
Suffolk Superior Court
09-4269
Restraining Order (Non dating relationship nor household member)
The alleged victim (who is related to the defendant but did not live with her) alleged that the defendant and her fiancé came to his home and broke in and maliciously damaged his property, filed a complaint in Superior Court requesting a restraining order issue against the defendant. The defendant hired Attorney Topazio to represent her at the hearing for the permanent restraining order. In Massachusetts, most restraining orders sought for protection are governed by Massachusetts General Laws chapter 209A. Under G.L. c. 209A a "family or household member" who claims to have suffered abuse can apply to the appropriate District Court for a restraining order to protect her against the actions of an alleged abuser. If the alleged victim, as in this case, is neither a family member nor household member of the alleged abuser, the alleged victim must apply to the Superior Court for injunctive relief. Today after hearing Attorney Topazio persuaded the court not to issue the restraining order for one year as requested but rather to extend it two months so as to give the parties the opportunity to see if matters could cool down before the Christmas holiday, with the intent of dismissing that order, and the court agreed.
Result: Restraining Order extended two months to give parties opportunity to cool down.
October 09, 2009
Quincy District Court
200956RO0816
Restraining Order MGL c. 209A
The wife of the defendant recently filed for divorce and served the defendant with divorce papers, yet still lived with her husband. Prior to a hearing on temporary motions in the divorce case, the wife went to the Quincy District Court and obtained an ex parte temporary restraining order against her husband of 24 years. Ex parte means the wife appeared in court without giving notice to her husband when she obtained the temporary order. Prior to the hearing on the Permanent Order, the defendant hired Attorney Topazio. Today, after conducting a full hearing, Attorney Topazio, was successful through effective cross-examination in challenging the wife's credibility and convinced the Court that the actions of the wife to file for a restraining order were most probably motivated by a desire to get leverage in the recently filed divorce case and not because she was in fear of her safety. Through cross examination Attorney Topazio elicited testimony that there was no history of abuse, prior restraining orders or police intervention between the parties. Today Attorney Topazio persuaded the Court not to issue the permanent 209A Order.
Result: Permanent 209A Order not granted.
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