Attorney James M. Lynch reviews the issuance process for 209A abuse protection order in Massachusetts District Courts and Probate and Family Courts.
In 1978, the Massachusetts Legislature first established a judicial framework to protect victims of domestic violence. Since then, the issuance of restraining orders to prevent domestic abuse has been governed by General Laws Chapter 209A and the body of appellate case law which that statute has spawned. Understanding ahead of time how domestic abuse restraining orders issue and just how fast things of long-term consequence can happen in the court process is of critical importance for defendants whose very liberty is at stake. It is important to note at the outset, the statute applies only to acts “between family or household members,” a class that includes individuals who “are or have been engaged in a substantive dating or engagement relationship.” The appellate courts have found that Chapter 209A does not apply to any other human relationship not specified within that statute.
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Generally, domestic abuse restraining orders under G.L.c 209A (“209A Orders”) are issued in either of 2 ways: 1) by a judge on an emergency basis; 2) by a judge in an ex parte hearing in court. Either way, G. L. c. 209A, § 4 requires that the plaintiff must demonstrate a “substantial likelihood of immediate danger of abuse.”
Emergency orders result from a police intervention, usually in response to a 911 call when the police call a judge during hours when the court is not in session. An emergency order will go into effect immediately and typically require the parties to appear in court on the next day the court is in session. In an emergency order scenario involving couples who reside together, the defendant is typically given only a few minutes to gather his/her things and then must vacate the home immediately. In the case of emergency orders, the defendant is almost always served immediately after the emergency judge issues the order and he/she is ordered to appear in Court at 9:00 a.m. the next day for a hearing on whether the Order should be extended for one year.
The second way a restraining order issues is when a complainant goes to the court house and applies for the issuance of a restraining order. The court almost always hear from only the complainant in an ex parte hearing – one in which only the complainant testifies – and, if persuaded by the complainant, the judge then issues an order for the full hearing to be held no later than ten court business days from the date of issuance. In the case of restraining order issuing after an ex parte hearing, the judge will schedule the extension hearing in a couple of days during which time the police are responsible for making service of the Order on the defendant in person. The Order will tell the defendant to appear in Court at the specified date and time and will most likely be extended for one year if the defendant doesn’t appear after having been served.
Following the issuance of an emergency 209A order, a judge may hold the extension hearing the very next day unless the defendant takes steps to prevent it. Indeed, a defendant might even find himself removed from his/her home for the next year at the end of the hearing.
Should a party find him or herself in court the day after an emergency 209A order enters, it may be unwise for the defendant to proceed without the assistance of counsel when the stakes are so high. Many parties should consider telling the Court that they want a full evidentiary hearing and a continuance so they can obtain a lawyer. In general, a Court will continue the hearing for 10 business days upon receiving such a request. Notably, a defendant should not leave the courthouse without a copy of the plaintiff/complainant’s supporting affidavit, since it is often the foundation for cross-examining the complainant at the extension hearing.
Another benefit of a what is effectively a 2-week continuance of the extension hearing is that it affords the parties a cooling-off period during which the life altering impact of the restraining order can be fully experienced and understood. When confronted with the real-world impact of the 209A order on their everyday life, plaintiff/complainants very often decide that it is preferable to allow the abuse order to simply expire at the end of the continuance period. Moreover, the two week period can also allow a divorce or other form of custody/support proceeding to be filed, providing tools to resolve the parties’ disputes through less extreme measures than a 209A order.
Of course, the downside of the 2-week continuance of an ex parte 209A order containing a “vacate” provision is that the defendant will have to remain out of the house during the continuance period, whereas if the hearing were held immediately, the defendant might prevail and be back in the house that same day. This can be a difficult choice for defendants to make when so much is on the line, and the party is unrepresented by counsel.
About the Author: James M. Lynch is a Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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