Restraining Orders &
Harassment Prevention Orders
There are two types of Massachusetts restraining orders: an abuse prevention order (209A order) and a harassment prevention order (258E order). If you are either seeking an abuse prevention order or a harassment prevention order, then you are considered the plaintiff. If you have been served with an abuse prevention order or a harassment prevention order, then you are considered the defendant. In either situation, your best chance of success at court is if you are represented by a lawyer experienced in handling Massachusetts restraining orders in both the probate courts and the district courts. Attorney Michael Thaler regularly represents people who are seeking or defending against abuse prevention orders and harassment prevention orders in the probate courts and district courts throughout Massachusetts, including in the Dedham and Boston areas.
The Difference between an Abuse Prevention Order and a Harassment Prevention Order
First and foremost, it is important to understand the difference between a 209A order and a 258E order. You are eligible for an abuse prevention order if you and the party you are seeking a 209A order against are or were one of the following:
residing together in the same household,
in a substantive dating or engagement relationship,
related by blood or marriage,
or you have a child in common.
Because it is a civil order, to obtain an abuse prevention order you must show by a preponderance of the evidence that you are suffering from “abuse” because your abuser has either:
harmed or attempted to harm you physically,
put you in fear of imminent serious physical harm,
or caused you to engage in sexual relations involuntarily by using force, threat or duress.
You are eligible for a harassment prevention order so long as you are suffering from harassment from someone that has either committed:
(i) three or more acts that are willful and with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or
(ii) an act that:
(A) by force, threat or duress causes another to involuntarily engage in sexual relations; or
(B) constitutes a violation of section 13B, 13F, 13H (indecent assault and battery), 22, 22A (rape), 23 (statutory rape), 24, 24B (assault with intent to rape), 26C (enticing a child), 43 (criminal stalking) or 43A (criminal harassment) of chapter 265 or section 3 (drugging for sexual intercourse) of chapter 272.
Obtaining or Defending a Massachusetts Restraining Order
In order to obtain either type of Massachusetts restraining order, the party seeking the order must file with the court that has jurisdiction over his or her town or city a complaint and an affidavit. The civil clerk’s office at each court has a copy of the forms, and there is usually a victim witness advocate available to assist in filling out the forms. The complaint is the form in which you document what you are seeking, including but not limited to a stay away order, a no contact order, and custody of minor children. The affidavit is very important – it is where you document the basis for the abuse prevention order or harassment prevention order, and it is signed under the pains and penalties of perjury. There must be a sufficient basis for either type of Massachusetts restraining order in the affidavit. Because it is a sworn statement and the underlying reason a person is seeking a Massachusetts restraining order, the affidavit is also the first thing to be attacked by an attorney representing a defendant, so it is important that all relevant details are included. Once the forms are filled out, the clerk’s office will send your file to the courtroom. The clerk will call your restraining order, and the judge will review the affidavit to determine whether to grant it. Sometimes, the judge will ask if there is anything you would like to add or will ask follow-up questions based on a review of the affidavit. If the judge grants your abuse prevention order or harassment prevention order, then a further hearing date will be scheduled approximately ten to fourteen days later. The purpose of the future date is for the person you are getting the Massachusetts restraining order against to be served with the restraining order such that he or she can appear on the further date to be heard in opposition to the extension of the order. On the return date, there will be hearing to determine if the abuse prevention order or harassment prevention order will be extended for up to one year.
For a plaintiff seeking a restraining order or a defendant opposing the extension of a restraining order, you are always entitled to be represented by an attorney. In fact, having an attorney represent you is not just a good decision given the nature of the relationship – having to confront an abuser or an accuser – but also provides great strategic benefit. An attorney does not just argue on your behalf, but also can cross-examine the other party. This is especially important for a defendant at a Massachusetts restraining order hearing, for you have likely been accused of committing some type of criminal – i.e., assault and battery, threats, or a sex offense. At an extension hearing, Attorney Thaler can cross-examine the plaintiff on your behalf and argue your position, preserving your fifth amendment right not to incriminate yourself. Attorney Thaler has witnessed individuals representing themselves at 209A and 258E hearings admitting to numerous crimes, sometimes even while an Assistant District Attorney is in the courtroom and taking notes. Such a strategy not only all but guarantees that the abuse prevention order or harassment prevention order gets extended, but it also results in a higher likelihood of conviction for an underlying criminal offense.
Going to court can be a daunting experience for anyone, but especially for someone who is potentially going to be in the courtroom with someone who has abused them. When you meet with Attorney Thaler, he will make sure that all of your questions are answered so that you understand what to expect when you go to court and are fully prepared to either seek the extension or termination of a Massachusetts restraining order based on your particular situation.
Consequences of a Massachusetts Restraining Order
There are serious consequences to a defendant of a Massachusetts restraining order. An abuse prevention order almost always carries with it a provision that requires the suspension of a FID card and the provision of any firearms to your local police department. In addition, after the expiration of a restraining order, you are not automatically entitled to the return of your FID card and firearms as your local Police Chief can also seek to deny their return based on whether you are deemed a “suitable person” when considering the allegations that gave rise to the abuse prevention order. Moreover, an abuse prevention order and harassment prevention order that gets extended on the return date will show up on your criminal record and can have adverse job consequences.
It goes without saying that the terms of the Massachusetts restraining order can be onerous, requiring someone to move out of his or her residence, terminate contact with his or her own children, and stay away from common locations. Most importantly, both an abuse prevention order and a harassment prevention order are civil orders, but a violation of either order is a crime punishable by up to two and one half years in jail. A violation of either type of Massachusetts restraining order, no matter how minor the alleged violation is, can result in the revocation of bail on any open criminal case for up to ninety days. Attorney Thaler is very experienced in handling both types of Massachusetts restraining orders on behalf of plaintiffs and defendants. He understands what information and evidence is relevant to bring up at abuse prevention order or harassment prevention order hearing to present your case in the best light to the judge in advocating your position.
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