Michael Thaler, Esq
I Have Been Served With A Restraining Order. What Should I Do?
If you have been served with a restraining order, it can be both daunting and overwhelming, especially if you have never been involved with the court system beforehand. Restraining orders are typically served by the police. Having the police show up at your doorstep is not an experience many wish to have, but it is done in this manner because the court requires verification that you have been served with the restraining order. This is done to ensure that you are notified of the terms of the order and for the safe removal of any firearms that you may possess.
First and foremost, it is vital that you know the specific terms of the restraining order. Oftentimes, a restraining order requires that there be no contact between you and the party who sought the restraining order as well as a stay away order of approximately 50-100 yards. No contact is not just direct contact between you and the person but also third-party contact. This means you cannot have someone else relay a message to the person who sought the order. Also, if you have any firearms, the order will likely require that you turn in your FID card and all firearms to the police while the restraining order is in effect. It is vital that this be done straight away. Otherwise, you risk being charged with violating the order or even illegally possessing a firearm simply due to forgetfulness.
Remember, a restraining order is a civil order. Merely having a restraining order filed against you is not a crime. However, violating a restraining order is a criminal offense. It is a misdemeanor carrying a maximum penalty of two and one-half years in jail. Further, any admission or conviction of violating a restraining order requires the completion of the batterer’s program, which is a forty-week class that meets weekly, regardless of whether physical violence is alleged, unless the sentencing judge makes written findings why it would not be appropriate given the circumstances.
There will be a further hearing on the restraining order within ten business days of the filing of the restraining order. This permits you to have the opportunity to appear at court to object to the restraining order being extended. At court, you generally have the right to question the person who sought the order, to present evidence in your own defense, and to argue to the court as to why the order should not be extended. The judge has to find by a preponderance of the evidence that “abuse” has occurred, which is defined as “the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” G. L. c. 209A, § 1. It is best to have a lawyer represent you in such a proceeding for a variety of reasons. You may not be familiar with court proceedings. Based on the allegations, it might be best that you not testify but confront the accuser through the questions and arguments of a seasoned attorney. The rules of evidence in these types of proceedings are applied flexibly, “provided that there is fairness in what evidence is admitted and relied on.” Frizado v. Frizado, 420 Mass. 592, 597–598 (1995). Ultimately, the judge could issue the order for up to a year, so the stakes are high. There are only a few days between when you receive a restraining order and when you appear at court, so it is important to consult with an attorney as soon as possible so that you and your attorney are fully prepared for the hearing.