209A Restraining Orders Defense
This is not a page for those wishing to obtain 209A Restraining Orders. If this is what you want, contact your local court or police department. This is a page for those who have been served or threatened with 209A orders. First of all, you are not alone. Each year literally thousands of people in Massachusetts, mostly men, are falsely accused of various degrees of abuse, which results in a 209A Restraining Order being issued against them. These orders are routinely used as leverage in divorce disputes, custody disputes, property disputes, and even as weapons to get the courts to force a breakup of a mere dating relationship gone sour. These reasons are, of course, not the intended purpose behind the 209A Law, but the true purpose -- protection from real abuse -- has long ago been lost in the sea of false accusations and vengeance.
I have dedicated a part of my practice to defending persons slapped with 209A orders. Few attorneys in Massachusetts wish to deal with 209A orders as a practice area, because, frankly, fighting a 209A order is often an uphill battle. Most available resources are for people wishing to obtain 209A Orders -- they are referred to as victims.
Are you a victim of a 209A?
It is the opinion of this lawyer that the true victims of 209A Orders are the falsely accused Defendants who are often left with no place to go, no place to stay, no place to call home, and no place to call for help.
This page and my 209A Blog are intended as such places. This page will provide general information on what is involved in fighting a 209A Order. The Blog is an ongoing discussion on new 209A law and other developments in this area. The 209A Blog is also the place to get your questions answered in an anonymous forum. Of course, if you wish for me to review your specific case in more detail, you may request a Free Case Evaluation.
Often out of anger and despair the 209A Defendants take steps that make the situation worse and hurt themselves even more in the long run. The assistance of a qualified attorney, while not required, is highly recommended. Your attorney will be able to objectively evaluate your case and advise you of your options and your chances of prevailing.
My 209A Defense approach:
While it is generally viewed as taboo for lawyers to discuss their fees on their websites, I would rather inform you of my fees ahead of time. 209A Defense cases are charged on a flat fee basis that includes all court appearances necessary to defend you and oppose the issuance or extension of the 209A order. The same flat fee includes all evidence and document review required in preparation to defend your case, as well as any meetings with you necessary in advance of the hearing to explain what to expect in court and to answer any questions. Depending on the complexity of your case and the distance of the court from my office, my fees for 209A Defense cases begin at $950. Your fees may vary, but you will know the exact amount of expected legal fees before making a decision on how to proceed. Naturally, during your representation I will always be available by e-mail or telephone to answer any questions or to advise you if there are any new developments in your case.
I suggest you contact my office with more specific questions. The rest of this page explains the procedure for issuance and extension of 209A Restraining Orders in Massachusetts. Of interest may also be my blog entry on 10 Most Important Actions when served with a 209A Order.
I use several interchangeable terms for the removal of a 209A Order. The Order can be:
All of these terms essentially mean the same thing: the 209A Order is gone, the individual can once again go home, see his children, pick them up at school, have unrestricted contact with them or others without the fear of arrest.
To develop a better understanding on what is involved in defending a 209A matter, the discussion below also reviews the procedure for obtaining 209A orders, and other related aspects of the law.
WHAT IS THE LEGAL DEFINITION OF ABUSE?Chapter 209A, the Massachusetts Abuse Prevention Act, defines abuse as:
WHAT IS A 209A ORDER?An Abuse Prevention Order, called a "209A Order," or a "protective order," or "restraining order," is a civil court order intended to provide protection from physical or sexual harm caused by force or threat of harm from a family or household member. (Note that while the 209A proceeding is civil in nature, violations of 209A orders are crimes punishable by fines and/or incarceration.) In practice these orders are often used as retaliation or tactical weapons in divorce, custody, or other domestic disputes. There have been instances of parents obtaining 209A orders against their adult children and vice versa. Disgruntled girlfriends have obtained them against their boyfriends, and vice versa. The instances of abuse of the system are common, and the courts make little effort to separate the legitimate cases from those that are not, usually relying solely on the story of the person asking for the order (the Plaintiff). The procedure for obtaining a 209A order is simple and the destruction that these orders cause in the life of the person who is being "restrained" (the Defendant) is tremendous. 209A orders are routinely granted against:
WHERE CAN ONE OBTAIN A 209A ORDER?A 209A Order can be obtained in any District Court, Superior Court, Boston Municipal Court, or Probate and Family Court in Massachusetts. An emergency 209A Order can be obtained through any police department after court hours, on weekends and holidays. One does not need an attorney to file for a 209A Order, the Plaintiff will receive help from court personnel and Victim Witness Advocates (employees of the District Attorney's Office whose sole job is to assist alleged victims with court procedures and filing criminal charges). There is no charge for filing for the order. Criminal charges are not necessary to obtain a 209A order, but Victim Witness Advocates often encourage the filing of criminal charges as well.
WHAT QUESTIONS ARE ASKED ON THE FORM?On the application or complaint forms for a 209A order, a sworn statement (affidavit) must be completed describing the facts of any recent or past incidents of alleged abuse. Existing 209A Orders from any court must also be disclosed, as well as any pending divorce or child custody proceedings.
WHAT RELIEF CAN A PLAINTIFF SEEK ON THE APPLICATION?The Plaintiff may request the judge to order that the Defendant:
WHAT HAPPENS NEXT?After the 209A complaint or application forms are completed, the case will be heard before a judge, who will ask the Plaintiff the reasons for a protective order, and will review the complaint or application forms and affidavit. The judge should be deciding whether it appears that there is a substantial likelihood of immediate danger of abuse. The judge will probably ask some clarifying questions. In some courts, a "209A Briefing Session " is held before the hearing and a Court Advocate or a District Attorney's Victim / Witness Advocate explains the hearing process and be remains in the courtroom to assist the Plaintiffs. Because the Defendant is most likely not present in court, the judge will only hear the Plaintiff's story without any rebuttal. Based on that one-sided account, the judge will grant (or rarely deny) the order. When granted, a Temporary Order is issued for 10 days, and the police will serve (deliver) a copy of the order on the Defendant as soon as they can, because the order cannot be enforced until the Defendant is aware of it. This need for expediency usually means that the police will serve the Defendant at work, or an equally awkward and untimely place. Within the order there will be a date for a second hearing, to take place within 10 days of the first. At the second hearing, the judge will decide whether to make the Temporary Order into a Permanent Order, one that lasts up to a year in duration and can be renewed thereafter. The Temporary Order is in effect immediately after it is served. If the Defendant is served at home and the order states that the Defendant must vacate the residence, the police will escort the Defendant out immediately, with the opportunity to only get dressed and grab the most basic personal items. If the Defendant is served at work and the order states that the Defendant must vacate the residence, going home that day would constitute a violation of the order, no matter how brief the visit. The Defendant may report to the local police department and ask to be accompanied to the residence to gather personal belongings. The police will arrange a time when the Plaintiff is not present and accompany the Defendant to the residence. Again, the opportunity to collect belonging will be very brief, as the police will not wait around more than a few minutes. Finally, if the Defendant has a license to carry firearms, the Temporary Order will state that the Defendant must surrender all firearms immediately.
WHAT CONSTITUTES A VIOLATION OF THE ORDER?
The smallest infraction of the "stay away" and "no contact" orders could be considered a violation, no matter how innocent, no matter how benign, and no matter if the contact or invitation was initiated by the Plaintiff. Not only is personal contact considered a violation, but indirect contact by mail, e-mail, text messages, and the act of sending flowers have all been considered violations. The Plaintiff calling the Defendant on the phone to apologize could be a violation for which the Defendant would be criminally liable, unless the Defendant immediately hangs up. The Defendant noticing the Plaintiff at a busy restaurant by chance could be a violation of a stay away order, unless the Defendant leaves the area right away. There have been numerous real cases, better described as horror stories, of the most innocent acts being prosecuted as violations to the fullest extent.
Consider a 2001 case where a Weymouth Defendant was ordered to stay 50 feet away from his ex-wife, but was allowed to come by the ex-wife's apartment building to pick up and drop off the couple's two children "as long as he remained in the vehicle." On one Saturday, while the Defendant was dropping off his 6 year old son, he honked the horn to get his ex-wife's attention. When the ex-wife did not come out to greet the child, as she usually did, the Defendant walked his son into the lobby of the apartment building and rang the buzzer to enable the boy to get inside the building's common foyer. The Defendant did not enter the ex-wife's apartment and did not have any contact with the ex-wife. The ex-wife called the police, and the Defendant was charged and convicted of violating the 209A order.
Once the police are aware of a possible violation, they are directed by law to arrest the Defendant if they have probable cause to believe that a violation occurred. Once the arrest is made, the incident is mostly treated like other crimes and generally follows the same process. See the Criminal Defense section for more information. One important note is that if the court determines that the alleged violation took place in retaliation for the Defendant being reported for failure to pay child support, the court must impose a 60 day imprisonment term and a fine between $1,000-$10,000.
WHAT IS A TEN DAY HEARING?The Ten Day Hearing requires the Plaintiff to return to court on the date specified in the Temporary Order. On that date, the Defendant may appear as well, with or without an attorney, and attempt to oppose the issuance of the Permanent Order through his own statements (testimony) and a limited right to ask questions (cross examine) the Plaintiff. The rules of evidence that apply during regular civil or criminal proceedings are not strictly enforced at a 209A hearing. While this makes it easier for a Defendant to speak for himself or herself without an attorney, this allows nearly free reign to the Plaintiff who can say just about anything, and the determination will come down to the Plaintiff's word against the Defendant's, compounded by the Defendant's criminal history or past instances of domestic violence, if any. If the Defendant does not appear for this hearing, there will be no one to oppose the Permanent Order, and it is even more likely to be granted.
WHAT HAPPENS AT THE END OF A YEAR OR THE END OF THE EFFECTIVE DATE?If a 209A Order is issued by the judge for a year, the Plaintiff must return to the court for an extension of the Order at the end of that year or the Order will expire.
WHAT CAN BE DONE TO CHANGE THE TERMS OF THE ORDER OR TO TERMINATE IT ENTIRELY?Any changes in the Order before the expiration date must be made with both Plaintiff and Defendant appearing in the same court where the Order was first issued. A request to change, amend, or altogether vacate the Order can be made at the Clerk's Office by either party, and a hearing will be arranged before a judge. Many times the Plaintiff feels remorse for seeking the order and wishes to have it terminated, but does not know how to proceed. The Victim Witness Advocates will be cautious about helping the Plaintiff to ask the court to terminate the order, because of the suspicion that such request is the result of duress or threats by the Defendant. While the Defendant with a "no contact" order may not speak to the Plaintiff, the Defendant's attorney may, and this help to bring about peaceful termination of the 209A order and reconciliation of the parties.
CAN A MINOR OBTAIN A 209A ORDER?A minor under 18 years old can obtain a 209A Order with some restrictions. Generally, a parent or guardian needs to be present, but the judge can decide to issue a 209A Order without a parent present if the minor appears to be in danger. In some cases, the Department of Social Services may offer assistance in offering assistance to a minor. Many high schools and colleges also offer assistance with obtaining 209A orders. A parent may also obtain a protective order for his or her child.
Law Offices of D. Lev, P.C.
134 Main Street
Watertown, MA 02472
(617) 556-9990 office
(617) 830-0005 fax
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