Getting a Massachusetts 209A restraining order or having one issued against you may seem simple. However, there are a variety of complex legal issues at play. Here are some general points to consider:
The Standard: A "qualified" person suffering from abuse may apply for a restraining order from the Probate and Family Court or the District Court. One qualifies for a restraining order under Massachusetts General Law chapter 209A when there exists a family or domestic relationship. The governing statute states that for a restraining order to issue, the person seeking the restraining order must have been the victim of physical harm or attempted physical harm; in fear of imminent serious physical harm; or have been caused to engage involuntarily in sexual relations by force, threat or duress.
The Process: An individual applies for a restraining order by completing the appropriate forms in the appropriate court along with submitting an affidavit explaining the reasons for the issuance of the order. Often and in non-emergency situations, an applicant may have the assistance of an attorney as early as this stage to ensure the paperwork is processed correctly. The applicant then must appear before a Judge and make this request on the record. If the order is issued, service must be made upon the defendant, who is entitled to be heard at a further hearing. Generally, this "re-hearing" is scheduled for ten days after the initial order is issued. The hearings may involve the presentation of testimony and/or other evidence. The hearings are conducted on the record. It is important to know that if you choose, you may be represented by an attorney at this hearing, as the testimony provided may be used against you in ongoing or future criminal proceedings either by the government or the defense, or in ancillary and related matters in the Probate and Family Court.
The Order: Restraining orders have several components. Most commonly, they order a defendant to stay away and have no contact with the plaintiff who can be an adult or even a child. There is generally a distance component, requiring the defendant to stay a specific distance away from the plaintiff. The no contact provision includes prohibitions from contact directly and indirectly such as through a third party and/or electronic or social media communication. In addition to ordering someone to stay away from the plaintiff, restraining orders often include provisions to stay away from the plaintiff's residence and place of employment as locations that must be avoided. Restraining orders may remain in effect for up to one year. They can be renewed annually, and in some occasions, made to be a permanent order.
The Consequences: There are serious consequences that come from having a restraining order issued against you aside from the obvious effect of limiting one's personal liberties. Many parties to Massachusetts restraining orders have children and related proceedings pending before the Massachusetts Probate and Family Courts. The issuance of a restraining order can severely impact the ability of a parent to see or even contact their children. Navigating through the complexities of a child custody dispute while a restraining order has issued can be a difficult task.
Though restraining orders are civil orders issued by the Court, any violation of specific parts of the order can constitute a crime. If there is an allegation and a finding of probable cause that a restraining order has been violated, a defendant can be immediately arrested and charged with the violation. The penalties for conviction are serious and include a potential jail sentence of up to two and a half years and the requirement of attending a batterer's intervention program.
Restraining orders also become part of a defendant's Court Activity Record Information (CARI). In any future encounters with the justice system, whether through the Courts or even by and through a routine traffic stop, members of law enforcement, the District Attorney's Office and the Trial Courts will be aware of any restraining orders that have issued. This could affect related and future proceedings before the criminal courts and probate and family courts.
Firearms licenses are also affected when a restraining order is issued. This falls within the discretion of local law enforcement. A restraining order requires the surrender of any firearms that you have in your possession. The issuance of a restraining order may prevent you from obtaining an FID card in the future.
If you or someone you know is considering obtaining a restraining order, or if one has been issued against you, you need to contact a Massachusetts restraining order attorney immediately. The lawyers at the Roncone Law Offices P.C. have extensive experience representing parties involved in restraining order hearings throughout Worcester County and Massachusetts as well as defending those accused of violations of restraining orders.