Steven J. Topazio - Attorney At Law

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.

Domestic Violence Restraining Orders

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.

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 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 flied 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.

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 order may result in incarceration of up to two and a half years in the house of correction as well as a five thousand 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.