Switching 209A Order to Harassment Protection Order Violates Due Process

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Switching 209A Order to Harassment Protection Order Violates Due Process

Judge violates due process rights in restraining order

Attorney Kimberley Keyes reviews a recent Appeals Court decision that a judge may not change a 209A restraining order to a 258E harassment prevention order without notice to the defendant.

Massachusetts divorce lawyer Kimberley Keyes

Attorney Kimberley Keyes

A recent Massachusetts Appeals Court recent decision found that a Defendant’s due process rights were violated when a District Court judge entered a harassment protection order (HPO) against the Defendant who was scheduled to appear for a hearing on a 209A abuse prevention order.

The cornerstone of the American justice system is the idea of due process. While due process includes many of the crucial aspects of our court process – like the right to an attorney and an impartial judge – one of the most basic is rights due process is that both parties are entitled to notice of the proceedings they are involved in, so they can plan in advance of trial and put on their best case.

When it restraining orders in Massachusetts, due process is often an elephant in the room. District Court and Probate and Family Court judges often need to make decisions in ex parte hearings without one party presence to issue emergency orders.

However, ex parte meetings are not the only time when due process considerations are implicated in family law decisions. Another line of cases focusing on a party’s right to sufficient notice – i.e. to know what they will face in court before the day of the hearing – illustrates the unfairness that can ensue when due process is overlooked.

The Case of HS v. DM: What Happens when a Plaintiff Who Needs a Harassment Prevention Order Seeks an Abuse Prevention Order Instead?

The case, H.S. v. D.M. (2017), involved the mother and the father of a child. The parents had been estranged for several years, with the only contact between them involved dealing with the father’s child support obligations.

One day, the father appeared on the mother’s doorstep, asking for “closure” and to be released from his child support payments. After the mother declined, the father returned to her doorstep every Sunday for several months with the same request. Eventually, the mother moved and did not tell the father her new address, but he found her after a couple of months and started doing the same thing. During one incident, he placed the mother in fear by putting his foot in the door when she tried closing it on him.

Matters soon escalated. The father started leaving letters addressed to the mother. He taped one to her family’s front door; he left another in the windshield of her car. Others were mailed, frequently. While these letters contained offensive language, none appeared to include an overt threat.

The 209A Standard: a Plaintiff Must Prove that she Reasonably Fears the Defendant’s Actions will Result in Immediate and Serious Bodily Harm to the Plaintiff

In H.S., the mother was so disturbed by the repetitive contacts by the father that she filed for a 209A restraining order in District Court. As we have covered in previous blogs, 209A restraining orders are intended to protect victims from violence and/or fear of imminent serious bodily harm. However, 209A orders are not the proper remedy for mere annoying or even harassing behavior that does not include a threat of physical violence:

[G]eneralized 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.

In H.S., the question before the District Court was whether the father’s annoying letters and appearances at the mother’s home, coupled with bad language and the incident where he stuck his foot in the mother’s door while she was closing it, rose to the threat level required for the issuance of a 209A order.

The 209A restraining order that the mother sought in H.S. – also known as an abuse prevention order – required the mother to show that she was in imminent fear of physical harm. In addition, the fear of immediate and serious physical harm must be reasonable. At the 209A hearing, which occurred the day after the mother had filed her petition, the judge determined that the mother had not met her 209A burden of proof. The District Court held that despite the father’s harassment, the evidence did not support that mother should reasonably fear immediate bodily injury as a result of the father’s actions.

Switching Restraining 209A Order to HPO Order Violated Defendant’s Due Process Rights

Where the mother did not meet the standard for extending a 209A restraining order, a District Court would ordinarily vacate or dismiss the mother’s petition and the case would end. However, in H.S., the District Court did not just decline to extend the protections of the 209A filing. The judge also issued a 258E harassment prevention order (HPO) based on the facts alleged by the mother in the 209A hearing. Notably, the judge entered the HPO without requiring the mother to argue the HPO was necessary or allowing the father to argue over whether a HPO was justifiable.

Importantly, a 258E order – also known as a harassment prevention order – has a significantly lower standard of proof than that of a 209A order. Instead of having to prove that she was in imminent fear of physical harm (the 209A standard), the HPO standard would have only required the mother to prove that the father, motivated by hostility towards, had committed at least three intimidating acts against the mother. In H.S., the judge was satisfied that the father’s unwelcome visits and letters met the HPO standard, so the judge entered a 258E order against the father without allowing him to defend himself against that particular charge, and based only on the evidence presented by the mother for the 209A order. Father appealed.

The Massachusetts Court of Appeals sided with the father, pointing out that changing which restraining order the case was about had violated his due process rights:

Basic due process considerations apply in the context of both G. L. c. 209A and G. L. c. 258E. … First, any order must provide the defendant with reasonable notice and an opportunity to be heard. In addition, the defendant is entitled to a meaningful opportunity to challenge the other’s evidence.

The elements and emphases of c. 209A and c. 258E are different. … When, as here, the alleged abuse consists of placing another in fear of imminent serious physical harm, a plaintiff seeking a c. 209A order must show both that she is currently in fear of such harm and that such fear is reasonable. To prove harassment under G. L. c. 258E, the plaintiff must prove that the defendant, motivated by cruelty, hostility, or revenge, wilfully committed three or more acts aimed at a specific person, each with the intent to cause that person to experience fear or intimidation, or to cause abuse or damage to property, which, considered together, did in fact cause fear, intimidation, abuse, or damage to property.

Here, the defendant successfully challenged the plaintiff’s evidence under c. 209A. Had he been given notice that the judge intended to consider the plaintiff’s complaint under the c. 258E standard, he might have adduced additional evidence or made legal arguments testing whether the facts satisfied the relevant standard. Accordingly, we vacate the harassment prevention order.  (Internal quotes and citations omitted).

Notice is a Key Component of Due Process

The judge’s decision to substitute a 258E HPO order for a 209A order, without notice to the Father, meant the Father was unable to prepare a defense against the harassment claims. As the Appeals Court noted, the legal standards and preparation for defense against a 209A order are quite different from a 258E order, and the Father might have argued a very difference case if faced with a 258E order.

While it might have been permissible for the judge to do this after scheduling a new hearing about a potential 258E restraining order and then listening to arguments from both sides, the judge did not do this. Instead, she merely moved the goal posts after the father had presented his case against a 209A order. She refused to give him another chance to defend himself against the new order, and then decided that the father should be held under the 258E restraining order.

Ironically, some of the biggest criticisms of 209A restraining orders involve due process concerns. For example, when a defendant is served with a 209A order by the police, he or she almost never receives a copy of the Affidavit filed by the Plaintiff. With only ten days to retain and attorney and prepare for the next hearing, an extra trip to Court for a copy of the Affidavit can seriously disrupt a defendant’s preparation. Worse still, when a defendant is served with an “emergency” 209A order – i.e. one issued after court hours – they are frequently ordered to appear in Court the following morning. Most defendants are not told they can have ten days to retain an attorney; indeed, many defendants appear at a hearing without an attorney the following day, only to have the 209A order extended for a year without ever having read the plaintiff’s affidavit.

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

Schedule a free consultation with Kimberley Keyes today at (781) 741-5000 or send her an email:

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By | 2017-11-13T13:01:21+00:00 May 12th, 2017|Categories: Restraining Orders, Updates|Tags: , , , |Comments Off on Switching 209A Order to Harassment Protection Order Violates Due Process

About the Author:

Kimberley Keyes is Senior Associate Attorney, Mediation Coach and Divorce Mediator at Lynch & Owens and South Shore Divorce Mediation. She is a frequent contributor to the Lynch & Owens SSDM Blogs on subjects including Massachusetts divorce, child custody and support, abuse prevention orders and Massachusetts family law. Attorney Keyes can be reached by phone at (781) 741-5000 or email at [email protected], or visit her bio page under https://lynchowens.com/attorneys/.