Restraining Orders - Massachusetts
The safety of you and your family is our first concern, and we have the experience to help you present your case to the Court clearly enough to ensure that the Judge is aware of the danger you are facing. Being inadequately prepared should not be an option when your safety is at risk. Below we have provided answers to many of the common questions that we are asked by our clients involved in Restraining Order disputes. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
What is a 209A Restraining Order?
In Massachusetts M.G.L. c. 209A sets the standards for obtaining a Restraining Order, also called an Order for Protection from Abuse. M.G.L. c. 209A authorizes the Court to create orders that protect people from abuse has very specific requirements for obtaining a restraining order. If you are seeking a restraining order you must show that you have a "reasonable fear of imminent serious physical harm" from the person you are seeking protection from. If you don't know how to demonstrate this to a Judge then you might not receive the protection that you need. You should consult with an attorney if you are not sure how to demonstrate this standard to the Court.How long does it take to get a Restraining Order?
If you are afraid for your safety and the person who is threatening your safety is close by then you should immediately call the police. Your immediate safety should be your first concern. If you contact the police during a weekday then they will likely settle the immediate danger and advise you to go Court. If you contact the police at any other time, they should assist you in obtaining a Restraining Order from the emergency Judge. If the immediate danger has passed, then you should consult with an attorney as soon as possible, and attend Court to request a Restraining Order by filing a Complaint for Protection from Abuse.How long does a Restraining Order last?
Once you obtain the emergency Restraining Order, the Court will likely set a date for hearing approximately ten (10) days after the date you obtained the order (sometimes only a few days depending on the circumstances). This review hearing is designed to give the Defendant the opportunity to be heard as to their side of the story. If you are afraid of seeing the Defendant in Court then request to speak to a Victim Witness Advocate who will assist you in Court. At the time of the review hearing the Court can extend the Restraining Order for a period of time, usually 6 months or one year; Orders over one year are rare.Does a 209A Restraining Order show up on a Criminal Record check?
If you are served with a Complaint for Protection from Abuse (sometimes referred to as a 209A Restraining Order) then your name and the Complaint are recorded in the Domestic Violence Record Keeping System which is visible to Judges and law enforcement officials (and certain airport personnel) though CARI (Court Activity Record Information), a subset of CORI (Criminal Offender Record Information).There is presently no statutory provision in Massachusetts allowing these records to be expunged.
This is explained in greater detail in a Massachusetts Bar Association article which indicates that the Mass Bar proposed an amendment to the statute, mandating expungement of the record when the Order was vacated at the first hearing (after being issued on an ex parte hearing, which most 209A Orders are initially). Unfortunately, this legislation was not enacted by the legislature, and today the law remains that there is no statute allowing these records to be expunged.
In Vaccaro v. Vaccaro a Husband requested via Motion that the record be expunged in the statewide system after a Judge found insufficient facts to justify extension of the Order, but the Supreme Judicial Court overturned the expungement because there is no statutory authority to expunge the record. Vaccaro v. Vaccaro, 425 Mass. 153, 680 N.E.2d 55 (1997).
In Commissioner of Probation v. Adams the Court did allow a record to be expunged, distinguishing the circumstances in that case by stating "a judge has the inherent authority to expunge a record of a 209A order from the Statewide domestic violence registry system in the rare and limited circumstance that the judge has found through clear and convincing evidence that the order was obtained through fraud on the court." In that case "fraud" consisted of a calculated pattern of nineteen false and perjurious statements. Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 730, 843 N.E.2d 1001 (2006).
In Noble v. Noble the Appellate Court (quoting Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598, 638 N.E.2d 29 (1994)) further defined a "fraud on the court" as when it can be "demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Noble v. Noble, 75 Mass.App.Ct. 1121, 909 N.E.2d 59 (2009).
Unfortunately, this means that in most cases where a 209A Restraining Order is vacated at the first hearing, it is still unlikely that the Defendant can get the original Order expunged from their record. The Courts have stated that this reflects a legislative intent to give the Courts and police as much information as possible when dealing with domestic violence situations. Unfortunately, as is often the case, this information can cost an innocent person their rights, even if they were falsely accused (but can't meet the burden of proving fraud).
If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
What if I was falsely accused of abuse?
Defending a restraining order can also be a very serious matter. If you are falsely accused of abusing a person, or threatening to abuse them, you could end up with a permanent mark on your criminal record. We have the experience to know that sometimes the process is abused, and if you are a victim of false allegations, we can help you defend yourself. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.Click here to learn more about Guardianships.
