209A Restraining Orders Can Be Abused

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209A Restraining Orders Can Be Abused

False allegations restraining order

Family law attorney Nicole K. Levy reviews how 209A restraining orders can be falsely obtained through exaggerated or false claims of abuse.

Massachusetts Child Support Lawyer

Attorney Nicole K. Levy

Few would question that restraining orders are critically important for the protection of victims of domestic abuse. However, the very nature of domestic abuse – which occurs behind closed doors, away from eyewitnesses – sometimes invites false or exaggerated claims of abuse that lead to the entry of unfair or unwarranted restraining orders. While most plaintiffs use restraining orders to get much-needed separation from a family member who is truly abusive, others may use restraining orders to create leverage in a contentious family situation. Still others misuse restraining orders in reaction to anger or stressful events, such as the final argument before a couple breaks up. Given that 209A restraining orders are narrowly tailored to protect victims from imminent serious bodily harm, the entry of a 209A order on improper grounds can have a devastating impact on the defendant, particularly if the parties have children together.

Domestic Violence: Hidden Behind Closed Doors, Away from Witnesses

It is important to recognize that the problem of falsely obtained restraining orders is the byproduct of a much larger problem: domestic violence. It is the nature of domestic violence for physical abuse to occur within the home, away from friends, neighbors and co-workers. Battered person syndrome is a very real phenomenon, and victims of domestic abuse often go years without calling the police, telling a doctor or documenting the abuse they have suffered. The uniquely “hidden” features of domestic violence pose special problems for judges seeking to stem the problem. With concrete evidence hard to come by, and judges well aware of the tragic consequences that occurs when abuse is ignored, most 209A cases come down the plaintiff’s word versus the defendant’s word, with little or no corroborating evidence. In such contests of credibility, it is not surprising that judges sometimes enter 209A orders based on false or exaggerated accounts by plaintiffs.

Despite all of the talk of 209A “reform” over the years, the reality is that the problem of domestic violence is not going away, and that addressing abuse basically requires to judges to make decisions based on little more than each party’s testimony (or the representations of their attorneys). Defendants who face a 209A hearing based on false or exaggerated claims should not believe that “justice” will necessarily prevail in their case; indeed, even defendants who prepare carefully and testify credibly my find themselves on the wrong end of a 1-year restraining order.

Defendants subject to falsely obtained restraining orders find themselves in a tight legal spot: Not only does having a 209A restraining order infringe on his or her liberty, with a constant risk of arrest or prosecution for a violation, but judges may also see the presence of a 209A order as indicative of an abusive tendency. Worse yet, even after a restraining order has been vacated or expired, the 209A order continues to appear on the Defendant’s criminal record, where it can be seen by future employers and judges who perform a CORI check. Overcoming this taint is not something that happens easily.

Expunging a 209A Restraining Order: A Difficult Challenge

In Massachusetts, a defendant who proves that a 209A restraining order was the result of the plaintiff’s fraudulent testimony will generally first seek to have the order vacated or dismissed. Where a vacated 209A order continues to appear on a defendant’s criminal record, however, many defendants wish to pursue expungement. A defendant who successfully expunges a 209A order will remove any trace of the 209A from his or her criminal record. Expungement, however, is no easy task.

A recent Appeals Court case, JSH v. JS (2017), explored the difficult legal standard that defendants must meet for expungement. Notably, the JSH decision was not based on a 209A restraining order, but rather a harassment order entered pursuant to G.L.c. 258E. However, where the Appeals Court held that the legal standard for expunging harassment orders is identical to the standard for expunging a fraudulent 209A order, the case provides an opportunity to review the law of expungement for both types of orders.

In JSH, like many cases involving an expungement request, the plaintiff originally obtained an ex-parte order at a hearing the defendant was not present for. At the review hearing, which the defendant attended, the court denied the plaintiff’s request for an extension. In other words, the defendant succeeded in defeating the plaintiff’s request for an extended order. However, the defendant JSH wanted more: he asked the judge to expunge all traces of the harassment order from the court’s record, where the defendant alleged that the original ex-parte order has been granted based on fraudulent statements by the plaintiff.

In the JSH decision, the Appeals Court first quoted an SJC decision, Vaccaro v. Vaccaro (1997), in which the Court had explained the value of maintaining accurate records of abuse allegations, even for vacated retraining orders:

“The system is designed to promote the goal of preventing abuse as prescribed by a variety of statutes by providing a judge (and other authorized agencies) with complete information about a defendant. Such information `can be essential to providing protection for the plaintiff.’ See Guidelines, commentary to Guideline 2:10. Because all restraining and protective orders are listed, both active and inactive, a judge may be better able to identify situations in which the plaintiff `may face a particularly heightened degree of danger.’ Id. at commentary to Guideline 3:05. The power of expungement cannot be a necessary or inevitable implication of the statutory mandate to record such orders and make them available to judges or other authorized agencies. On the contrary, such a power would be inconsistent with the manifest purpose of G. L. c. 209A and other abuse prevention statutes.” (Footnote omitted.)

In plain English, this portion of the Vaccaro decision says that the value of protecting victims of abuse by tracking 209A restraining orders outweighs the privacy rights of defendants against whom 209A orders have been vacated or allowed to expire. Indeed, the fundamental argument against expungement comes down to this: protecting domestic violence victims as a group versus protecting the privacy rights of individual defendants. Vaccaro and decisions like it tell us that the need to protect victims generally outweighs the privacy rights of individual defendants, even if this policy sometimes creates an unfair hardship for individual defendants.

However, the JSH then goes on to cite Commissioner of Probation v. Adams (2006), the decision in which the Appeals Court carved out an exception to the ordinary rule by allowing expungement of 209A orders “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.” Citing Commissioner of Probation v. Adams (2006), the Court went on to note:

[P]reventing abuse … is not served if the order was obtained through fraud because “allowing the court to be manipulated by fraud poses a danger to its authority.” … Instead, “judges have the authority to fashion remedies that will protect the integrity of the courts, and that will discourage the public from attempting to use the courts to perpetuate fraudulent schemes.” … Furthermore, in instances of fraud, “the judge’s inherent power to fashion an appropriate remedy is not vitiated by the statute’s omission regarding expungement.” (Internal citations omitted).

Establishing a “fraud on the court” is no easy task, however, the decision explains:

“A `fraud on the court’ occurs where 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.” … This court in Adams identified such fraud to include a party presenting to the court forged letters, fabricated e-mails, and a “calculated pattern” of false statements. … See MacDonald v. MacDonald (1990) (examples of fraud on the court include bribery of judges or the jury, employment of counsel to influence the court, and counsel’s involvement in the perpetration of the fraud); Wojcicki v. Caragher (2006) (holding that false testimony, alone, does not support finding of fraud on court without evidence of more “egregious conduct involving a corruption of the judicial process itself”); M.C.D. v. D.E.D. (2016) (distinguishing “deliberate scheme . . . typically involving others in the court system, combined with a larger pattern of harassment,” which constitutes fraud on court, from mere “false allegation,” which does not). (Internal citations omitted).

In short, a false allegation is not enough, on its own, to establish that the plaintiff has perpetrated a “fraud on the court” that would justify expungement of a 209A order. Instead, the plaintiff’s conduct must include aggravating factors like bribing a judge or jury, using an attorney to advance fraudulent claims, and involving others from within the court system, such as probation officers or investigators, in the lie.

Successful Expungement: Requires Clear Instances of Perjury and More 

The Adams decisions represents a rare example of a successful expungement. In that decision, which involved a 209A harassment order against an attorney, the Court described the plaintiff’s fraudulent conduct as follows:

In essence, the District Court judge found that the 209A order against Adams was obtained through fraud on the court. We recognize that the judge did not use the words “fraud on the court.” However, he found that “[the nineteen] allegations by [Jones] are false and perjurious”; “[his behaviors] are indicative of an obsessive compulsion that is extremely alarming”; “[t]he seeking of the restraining order . . . is part of a larger pattern of harassment”; and “[i]n addition to filing affidavits that contain falsehoods . . ., [Jones] has falsely complained of [Adams] to the Board of Bar Overseers.” In addition, the judge found that Jones obtained the ex parte order against Adams “without disclosing that [Adams] had a restraining order against him.”

In short, the plaintiff in Adams perjured himself 19 times as part of a pattern of harassment against the defendant. He was subsequently charged with criminal harassment of Adams in a separate criminal case. The falsely obtained 209A order seriously harmed Adams’ employment prospects, making expungement especially appropriate:

As a result of Jones’s false complaints, the terms and conditions of Adams’s employment were altered to prevent her unsupervised contact with children. The judge found, but did not further specify why, Adams lost employment opportunities because of her listing in the system as an abuser.

The decision in Adams illustrates how extreme a plaintiff’s misconduct must become in order for expungement to become available. It is not enough to show the plaintiff was lying.

How the Restraining Order Process Works

Attorney Lynch went into detail about how 209A orders work in his blog post, “Understanding the 209A Restraining Order Process” and subsequent blog, “Extending Emergency 209A Domestic Restraining Orders”. Previously, he covered the risks associated with 209A orders in his blogs, “You’ve Been Falsely Accused in a Restraining Order Proceeding. Now what?” and “Domestic Restraining Orders: Traps for Unwary Parents”. For more information on how the restraining order process works, take a look at these and our other restraining order blogs.

How 209A Orders Can be Falsely Obtained

As covered in Attorney Lynch’s recent blogs, the first step in nearly every restraining order is an ex-parte hearing. Such a hearing can occur over the phone with the “emergency judge”, which will result in a follow-up hearing the next day, or the ex-parte hearing can take place in a courtroom, before a judge who will schedule the follow-up hearing in ten days. The key feature of ex-parte hearings is that only one party is present: the plaintiff. Without the defendant and his or her attorney present there to tell the defendant’s story, it is not surprising that many (if not most) ex-parte restraining order are extended.

Because there is no one present to fact-check or argue against the issuance of a restraining order in an ex-parte hearing, such hearings often end with an order being granted. Without a counter arguments 209A orders can easily enter based on accusations that exaggerate, stretch the truth or that are plain falsehoods. The only thing standing in the way of a complainant making grandiose claims in the hearing is a charge of perjury. Such charges, however, are rarely pursued by the district attorneys’ office.

All of these factors make the restraining order process vulnerable to false or exaggerated claims. Unfortunately, falsely obtained 209A orders do not just harm the affected defendant. False allegations of abuse cause just as much harm to genuine victims of abuse, who find it harder to receive the help they need because false allegations by dishonest plaintiffs cause cynicism and suspicion against all plaintiffs, including those who are legitimate victims of serious abuse.

As noted above, there are many reasons why a plaintiff might falsely obtain a restraining order. Perhaps the parties’ relationship is failing, and a final argument resulted in anger and outrage. Perhaps the parties share a child, and the defendant said he or she would seek custody of the child, if the parties break-up. Perhaps the defendant has genuinely engaged in harassing or annoying behavior that might warrant the entry of a harassment order, even if the defendant has never threatened violence of any kind. Because 209A orders most frequently involve romantic partners, emotions run high, children and money are often involved, and parallel forms of litigation – from divorce to child custody to child support – can be easily influenced through the entry of a 209A order. In many cases, a 209A order is the most straight-forward way for the plaintiff to force the defendant to leave a residence.

Indeed, in our experience, it is generally rare for a party to obtain a false 209A order based merely on spite or revenge. Instead, most false 209A orders seem motivated by strong emotions, non-violent but highly upsetting arguments and/or parallel legal proceedings, like a divorce or custody case involving children. False claims often involve an exaggerated version of a real incident; a loud argument that actually occurred, in which the plaintiff later describes feeling physically threatened is very common.

In some cases, filing a restraining order and alleging abuse can put a taint on a spouse during a pivotal time in a divorce proceeding. In other cases, it can be used to get leverage in a child custody case, creating a trap for unwary parents. In still others, restraining orders can be used to put financial or emotional strain on a household member, simply to make their lives more difficult or to exact revenge for some other past wrong. Alcohol is frequently a factor in such arguments, with plaintiffs frequently calling police after both parties have been drinking and arguing.

Most defendants in 209A cases are men. This is not the product of gender discrimination; most incidents of domestic violence involving serious bodily harm are perpetrated by men. In general, men are generally more physically powerful than women, and more prone to physical violence.  Those are simply the facts. However, it is important to remember that most falsely obtained 209A orders are based on the exaggerated version of a real, emotionally charged event, like an argument following a night of drinking. Obviously, there will be situations in which a 209A order enter based on a purely fabricated claim, but in most cases, there are warning signs that men should heed to avoid being accused:

  • Is the relationship coming to an end in an emotional or angry manner?
  • Is a dispute over child custody likely if the parties break-up?
  • Is there a history of arguing after heavy drinking or substance abuse?
  • Have the parties exchanged angry text messages or emails that could be read as threatening?
  • Are the parties “trapped” in an unhappy relationship due to neither party being willing to leave the home?
  • Are there any other signs of rage, desperation or instability that makes one party likely to call the police during an argument?

Fighting a False Restraining Order

Being falsely accused in a restraining order proceeding is not an easy thing to deal with. It can make defendants feel like a victim, and there is no magic bullet for defeating a false claim.

However, the abuse prevention laws of Massachusetts give defendants the right to a hearing on the restraining order within ten days. This is a defendant’s opportunity to present his or her case that the restraining order should not have been issued in the first place. It is also where a defendant can remove the stigma associated with the false accusations that led to the order’s initial issuance.

Unfortunately, 209A hearings frequently include very relaxed rules of evidence. While this allows more evidence into the hearing, it also means that evidence that would otherwise be deemed inadmissible (due to hearsay or relevance) can be heard. Such relaxed rules pose extra danger to an unprepared defendant. The same relaxed rules of evidence, however, can be used to make a defendant’s case, as well. By bringing in witnesses, documents, and other evidence that can back up his or her argument, a defendant can often prove to a judge that the issuance of the restraining order was based on false claims, and the order vacated.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.

Schedule a free consultation with Nicole K. Levy today at (781) 741-5000 or send her an email:

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By | 2017-04-07T12:32:17+00:00 April 3rd, 2017|Categories: Restraining Orders, Updates|Tags: , , |Comments Off on 209A Restraining Orders Can Be Abused

About the Author:

Nicole K. Levy is a Senior Associate and Divorce Mediator at Lynch & Owens, and is a frequent contributor to the Lynch & Owens Blog on subjects including Massachusetts divorce, child custody and support, Department of Children and Families matters, and financial probate and family litigation. Attorney Levy can be reached by phone at (781) 741-5000 or email at [email protected], or visit her bio page under https://lynchowens.com/attorneys/.