209A: When wishes don’t come true

Posted on December 20th, 2007, by Dmitry Lev

In 209A Restraining Orders proceedings the Plaintiffs usually get exactly what they ask for. If the Plaintiff wants “no contact” — the judge is likely to order no contact. If the Plaintiff wants the Defendant to stay away 100 yards from the Plaintiff’s workplace — it will most probably be so ordered. When the Plaintiff is not sure what he/she wants, the judges will use their experience and their usual practice to determine what the terms of the restraining order should be. One way or another, the Plaintiff gets what she wants.

But what of that remorseful Plaintiff, or the couple that reconciled on Valentine’s Day, or that girlfriend who within a week realized that her boyfriend wasn’t really cheating and all those cell phone calls he was making in fact were to his mother?? Well, these Plaintiffs are encouraged to take a trip to the Clerk’s Office of the Court where the 209A order was granted, ask to go before a judge, and ask the judge to vacate (meaning: cancel) or at least modify the 209A Order. Strictly formally speaking, this kind of a request should be done via a written motion that is supported by an affidavit, but because of the relaxed procedural rules of 209A proceedings, many courts will allow a sympathetic Plaintiff to go before a judge without these formalities. Sometimes the Clerk will instruct the Plaintiff to write up a paragraph on a pre-printed form stating the reasons why s/he wants the order vacated, though the Clerk is only allowed to explain procedure as opposed to providing legal advice.

If the Plaintiff got this far, only two more barriers remain before the order can be modified or dismissed. The first will surely appear in the form of a Victim Witness Advocate (VWA). These folks are state employees who are usually not licensed to practice law, and they are available on hand at most courthouses. Their at least theoretical purpose is evident from the title: they are supposed to help victims and witnesses of crimes. In practice, however, these VWA’s instead of taking the victim’s side will at times take the side of the 209A Order itself, meaning they will advocate for the issuance and extension of the order whether the Plaintiff wants it or not. VWA’s, like Clerks, are not supposed to give legal advice and they are not supposed to play lawyer and try to represent the Plaintiff before a judge — that in itself would be a violation of a totally different set of laws. During the hearing, they are literally supposed to stand next to the Plaintiff and no more. However many times their services end up taking the form of poorly formed or outright wrong legal advice which leave Plaintiffs with an incorrect understanding of the procedures and the law, or needlessly worried about some nonexistent consequence.

In our example, when the Plaintiff comes to court wanting to have the 209A order vacated, the Victim Witness Advocate may get in the way and, through various tactics that could rise to intimidation or even threats, would talk the Plaintiff into turning around and leaving the restraining order in place. If the Plaintiff gets through this barrier, the second barrier will be the judge. Here, just as at the beginning when the order was first being sought, the Plaintiff will generally get her way and the order will be vacated or modified accordingly after a short hearing. The judges will usually inquire whether anyone has threatened or forced the Plaintiff into making a request to vacate the order, but in the end they will most often do as the Plaintiff asks. There is one situation, however, where judges will generally not abide by the Plaintiffs’ wishes but instead will leave the restraining orders in place unchanged. This situation is where there is an open criminal case against the Defendant, and especially so where the open criminal matter concerns the restraining order in some way: either an accusation of a violation of the order, a charge of assault and battery against the Plaintiff, or any other alleged criminal conduct towards the same person or persons who are involved in the restraining order case. Here a judge will either outright deny Plaintiff’s request to vacate the order, or advise the Plaintiff to return at some later date.

There is no law that prohibits the judge from vacating a restraining order during the pendency of a related criminal case, but judges tend to stick by this unwritten rule as a matter of practice. A reasonable approach for the Plaintiff in such a case would be to work with the Defendant’s criminal defense attorney who represents the Defendant in the open criminal matter, and to make that attorney aware of the parallel 209A issues. Some defense attorneys are hesitant to speak with 209A plaintiffs thinking that they are placing their client in violation — this is not the case. Defense attorneys are allowed, even obligated by their affirmative duty to fully investigate their clients’ criminal cases, to interview and speak to as many witnesses as possible, including the Plaintiff, if necessary. In certain cases it may be wise for the attorney to “put it on the record” and inform the court that the attorney intends to have contact with the Plaintiff in the 209A matter. All of these details are for the attorney to sort out. It is important to note, however, that the attorney is not allowed to serve as a conduit for communications in cases where the 209A order prohibits direct or indirect contact. In other words, the attorney may ask the Plaintiff what happened on a certain date and time or the attorney may provide certain information about the Defendant’s ongoing criminal matter, but the attorney may not say to the Plaintiff, “Joe Defendant told me to tell you that he’s sorry.” If the police are notified, that would almost certainly be prosecuted as a violation of the 209A prohibition against indirect contact if this prohibition is a part of the order. Simpler still, the Plaintiff may simply refuse to speak with the Defendant’s attorney. But for that remorseful Plaintiff, a speedy resolution of the Defendant’s criminal matters is the key to getting a hesitant judge to act to vacate a 209A restraining order.