Attorney James M. Lynch reviews extension hearings for 209A restraining orders that are issued on emergency basis.

In last week’s blog, we discussed how restraining orders are issued in the first instance. This article deals with proving (and disproving) domestic abuse G.L.c. 209A at a court hearing to extend the original restraining order.

To extend an ex parte order (an order issued without hearing from the other party), the plaintiff must show that he or she is suffering from abuse, or that a protective order is necessary to protect him/her from the likelihood of abuse. No presumption arises from the fact that a prior order has issued; it is the plaintiff’s burden to establish that the facts that exist at the time.

Proceedings under G.L.c. 209A are not criminal in nature so the standard of proving domestic abuse is far less than the criminal standard of proof beyond a reasonable doubt. The civil standard of proof applied in 209A cases is proof by a preponderance of the evidence or, in layman’s terms, a judge must be only 51% percent certain that the complainant has met the statute’s requirements. This is not a very high standard of proof when a common remedy afforded by the restraining order is a one-year no-contact order that requires the defendant to vacate his/her home if the parties are living together. The stakes are, indeed, very high at the hearing to extend the ex parterestraining order.

Domestic “abuse” is defined in G.L.c. 209A, §1 as:

the occurrence of one or more of the following acts between family or household members:

(a) attempting to cause or causing physical harm; [OR]

(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. A showing of any one of the above 3 factors is sufficient justification for the issuance of a restraining order.

Because restraining orders issued under Subsection 1(c) are, by far, the least common of all domestic abuse orders issued, this blog will focus only upon the first two subsections.

Table of Contents for this Blog

• G.L.c. 209A, §1(a): Restraining Orders Based on Actual Bodily Harm
• G.L.c. 209A, §1(b): Restraining Orders Based on a Fear of Bodily Harm
• Is any “fear” – no matter how unreasonable – enough to justify an extension of the 209A Order?
• What type of “harm” is enough to justify an extension of the 209A Order?
• How are the hearings to extend the ex parte 209A restraining order conducted?
• Failure of either party to appear at the hearing to extend the ex parte restraining order
• What happens if the 209A Order is extended?
• Can I appeal the 209A Order?

G.L.c. 209A, §1(a): Restraining Orders Based on Actual Bodily Harm

Occurrences that fall under category in Subsection 1(a), while more common, tend to be easier for complainants to prove. For example, actual physical harm is very often demonstrated through visible marks like cuts, scratches, bruises or red areas on the body of the complainant that are consistent with violence. Sometimes police responding to the scene of a domestic dispute don’t see any visible signs of injury but will observe signs consistent with an attempt to cause physical harm such as upended or broken furniture, broken glass or dishes. Sometimes it is a neighbor who call the police because the neighbor hears loud arguments or other sounds consistent with a struggle. Cases which fall under Subsection 1(a) typically do not involve verbal threats alone; rather, they tend to involve physical acts which are demonstrably provable. Moreover, they tend to be easiest for judges to handle because of the corroborating physical evidence which so often accompanies these cases. Sometimes there are no visible indicators of physical harm or only an attempt to cause such harm is alleged. Those cases will turn on the credibility of the alleged victim and they present a more difficult challenge for the hearing judge.

G.L.c. 209A, §1(b): Restraining Orders Based on a Fear of Bodily Harm

It is the category of occurrences governed by Subsection 1(b) – placing another in fear of imminent serious physical harm – that is the most controversial of the 3 categories of occurrences of domestic “abuse” that justify the issuance of restraining orders. That is because Subsection 1(b) restraining orders are primarily based upon fear rather than actual harm. To be sure, the Legislature provided qualifiers for the type of fear a complainant must prove (which we will examine) but this category does not require a showing of actual harm for a restraining order to issue, only fear.

Is any “fear” – no matter how unreasonable – enough to justify an extension of the 209A Order?

A fair reading of the statute would lead the reader to understand that even the fear of a hyper-sensitive complainant – no matter how unreasonable – would be sufficient to justify the issuance of a Subsection 1(b) restraining order because the statute doesn’t say otherwise; it only says “fear”. The word “reasonable” is not found in the statute; however, the case law interpreting Subsection 1(b) requires that the fear must be objectively reasonable in order to justify the issuance of a restraining order. In other words, the hearing judge must make the determination that the complainant’s fear is reasonable based upon all of the circumstances but the standard is objective – not subjective. Therefore, generalized apprehension, nervousness, feeling aggravated or hassled . . . when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm. However, credible evidence of past incidents of domestic violence weighs heavily in the determination that the fear is reasonable. In other words, if a complainant testifies to past incidents of abuse and the judge finds that testimony to be credible, then that would be sufficient basis to justify the hearing to extend the ex parte restraining order.

What type of “harm” is enough to justify an extension of the 209A Order?

For orders issued under Subsection 1(a), it would appear that any type of harm – however slight – would be enough to issue or extend an ex parte 209A order. Subsection 1(a) does not specify; it merely says “physical harm”. On the other hand, Subsection 1(b) does specify: it must be a fear of imminent serious physical harm. “Imminent” means “about to happen”. How near or how remote in time the physical harm is reasonably feared to occur is determined on a case-by-case basis.

There do not seem to be any cases where the appellate courts have defined the minimum threshold requirements of “serious”. In practice, therefore, what constitutes “serious” is decided on a case-to-case basis. However, for a defendant to argue that an unpermitted touching does not justify the extension of an ex parte restraining order – when that touching carries with it even a small degree of force – is a tough argument for a defendant to make to a judge in today’s climate.

How are the hearings to extend the ex parte 209A restraining order conducted?

The trial judge is given great latitude in how the hearing will be conducted, including where to physically place the participants in the courtroom and the tone of the cross-examination – i.e., taking steps to keep control of the hearing and making sure that cross-examination isn’t conducted in a manner meant to harass the other party – while, at the same time, keeping on alert for possible Fifth Amendment issues if there is an on-going criminal case arising out of the same occurrence. Unlike a criminal case, however, where no adverse inference is permitted to be drawn by a judge or jury if the defendant doesn’t testify, the 209A extension hearing is a civil proceeding and in civil proceedings a judge is allowed to draw an adverse inference if the defendant doesn’t testify.

Judges have the discretion to allow a non-lawyer advocate – usually a victim’s rights advocate – to stand with the plaintiff during the hearing and speak with the plaintiff in order to help the plaintiff provide the Court with relevant additional information.

At the hearing to extend the ex parte restraining order, strict adherence to the common law rules of evidence is not required as long as that there is fairness in what evidence is admitted and relied upon. For example, the court can properly receive testimony that would otherwise be hearsay. Rules relating to the authenticity of evidence are also relaxed. For example, voice messages may be admitted without the necessity of formal court authentication if the court is satisfied that the witness recognizes the other party’s voice.

Failure of either party to appear at the hearing to extend the ex parte restraining order

If the defendant fails to show at the hearing to extend the ex parte restraining order after having been properly notified, the G.L.c. 209A §4 states that “the temporary orders [the ex parte orders] shall continue in effect without further order of the court” [emphasis added]. If the Court in some way amends the original Order, then personal service – in hand – must be made upon the defendant with the amended Order.

If the plaintiff fails to appear at the hearing and the defendant does appear (or if neither party appears), the matter may be dismissed if the plaintiff has not given a reason for not appearing that is acceptable to the Court. As a practical matter, if a plaintiff simply fails to show without contacting the Court, the Order simply expires.

What happens if the 209A Order is extended?

The Order can be extended for up to one year, or some lesser period if the plaintiff requests it or the Court deems a lesser period appropriate. If the Order is extended after a contested hearing, the defendant is held in the courtroom and he/she is served the extended order by a court officer. If the defendant did not appear at the extension hearing, after having received proper notice of the hearing, the extended Order will be transmitted to the local police department for service. If the original Order was amended by the hearing judge, the police will be required to serve the defendant personally, in-hand. If the original Order was not amended, then the police will make service by leaving the Order at the defendant’s last and usual address.

Can I appeal the 209A Order?

Unfortunately, there is no quick and uncomplicated way to appeal a court ruling on the extension or non-extension of a 209A restraining order. Since 1995, the only avenue of appeal is by way of a full-blown appeal to the Massachusetts Appeals Court. They are expensive, intricate and time consuming. In fact, many of the appellate decisions that we see are appeals of orders that are decided after the restraining orders have expired after one year.

About the Author: James M. Lynch is the managing partner at Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. He is also a mediator at South Shore Divorce Mediation.

Schedule a consultation with James M. Lynch today at (781) 253-2049 or send him an email.