In Massachusetts, M.G.L. c. 209A allows the court to create orders that protect people from abuse. These orders, known as “Restraining Orders”, “Abuse Prevention Orders” or “209A Restraining Orders” prohibit the defendant not to abuse or contact and to stay away from the person who has obtained the order, and, if applicable, the person’s minor children. 209A Restraining orders may be obtained against a current or former spouse, a current or former household member, the other parent of a child, a relative by blood or marriage, or anyone with whom the person has had a substantial dating relationship. If the parties do not have one of the relationships described above, the court will not issue a 209A Restraining Order.

Obtaining a 209A Restraining Order is a civil proceeding, rather than a criminal proceeding. That means that the person seeking the order must prove by a preponderance of the evidence that they have a "reasonable fear of imminent serious physical harm". Put another way, the person seeking the order must demonstrate that the abuser has caused or threatened to cause physical harm, or has placed the victim in fear of imminent serious physical harm. Violation of a 209A restraining order is a crime, provided the restrained person knew of the restraining order.

Of course, if you are facing an imminent risk to your safety, call the police or 911. Your immediate safety should be your first concern. While the police can alleviate the immediate danger, calling the police to report abuse does not automatically result in a restraining order. If the immediate danger has passed, then you should consult with an attorney as soon as possible, and attend Court to request a Restraining Order by filing a Complaint for Protection from Abuse.

Beginning May 4, 2009, Norfolk County will start a pilot program involving the interdepartmental transfer of certain abuse prevention proceedings. In plain English this means that 209A Restraining Order cases opened in a District Court in Norfolk County may be transferred to the Norfolk Probate and Family Court, if there is already an action pending in that Court.

EXAMPLE: Whitney and Bobby are married and live in Dedham. One night they get into a fight and Whitney calls the police. Bobby is not arrested but is escorted from the home by the police and Whitney is provided with an emergency 209A Order for Protection from Abuse (commonly called a Restraining Order). The Restraining Order requires that both Whitney and Bobby show up at the Dedham District Court the next day to go in front of a Judge who will decide whether the Restraining Order should be extended.

After a hearing the Judge extends the Restraining Order for two months ( “a cooling off period”). That afternoon, Whitney goes to the Norfolk Probate and Family Court in Canton and files a Complaint for Divorce. Whitney also files a Motion for Temporary Orders asking a Family Court Judge to give award her custody of the children and order Bobby to pay her child support.
At the hearing on Whitney’s Motion for Temporary Orders, Bobby asks for visitation because he hasn’t seen his children since the Restraining Order went into effect. The Probate Court Judge orders physical and legal custody to Whitney with a visitation schedule for Bobby.

Under the current rules, there are now two Orders from two different Courts that are different. The problem for Bobby is that the Dedham District Court Order is the one that the police will follow. If Bobby tries to pick up his children for visitation he may be arrested unless he and/or Whitney go to the Dedham District Court and ask the Court to amend the Restraining Order.

The pilot program would give the Norfolk Probate and Family Court Judge the power to transfer the Dedham District Court 209A Restraining Order case to the Norfolk Probate and Family Court. This means that when the Family Court Judge makes a decision it will apply in both cases and amendments can be made to the Restraining Order immediately to be consistent with the Probate Court orders.

This benefits Whitney and Bobby by having only one court for them to visit, allowing for less court hearings total, and by having one Judge who can hear all issues and make decisions that are consistent and take into account both the safety concerns of Whitney and the best interest of the children.

The full language of the Order can be viewed here. Under the pilot program, the transfer can be initiated by motion by either a party or sua sponte by the Probate and Family Court judge. The parties will have an opportunity to be heard on the question of transfer.

The pilot program will be for one year and will be reviewed after six months by the Chief Justices of the Probate and Family Court and the District Court.

In our last post we provided information on the three types of orders that can help protect someone from an abusive spouse.

In two scenarios these orders can be permanent:

An abuse prevention order under M.G.L. c. 209A, often referred to as a 209A or restraining order, can be ordered for any fixed period of time up to one year. If an ex-parte hearing (without the defendant) was held for the initial hearing, then another hearing will be set up within ten (10) days to give the defendant an opportunity to tell their side of the story. After that opportunity, the order can be extended for up to one year. At the extension hearing if the plaintiff appears, the court may extend the order for any additional time reasonably necessary to protect the plaintiff. This extension can be permanent if the circumstances warrant that decision.

In addition, pursuant to a divorce case under M.G.L. c. 208, § 18, the Probate & Family Court can order a husband or wife to refrain from placing any restraint on the personal liberty of the other. In Champagne v. Champagne, the Massachusetts Supreme Judicial Court determined that this statute allowed for permanent orders pursuant to the broad language stating "to make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty."

In Massachusetts, there are three statutes which can provide protection from an abusive spouse.

As a preliminary warning, none of these statutes, nor any other piece of paper, can physically prevent someone from harming you. These laws only provide for extra penalties and orders to discourage such behavior. If you are in fear of being harmed, and don't think that anything will stop your abuser then you should call a Domestic Violence Program for help.

Despite the limitations of these orders, they can still be useful tools in discouraging, preventing and punishing abusive behavior. The three statutes that can be used by victims of abuse to obtain protection from an abusive spouse are:

1. M.G.L. c. 208, § 34B - Order to Vacate Marital Home

Authority: The Probate & Family Court may order a husband or wife to vacate the marital home as part of a divorce or separate support proceeding.

Standard: The Court may order the offending spouse to vacate "if the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order."

Time limitations: The Order to Vacate shall not exceed ninety days, but can be extended for an additional "certain period of time, as the court deems necessary or appropriate."

2. M.G.L. c. 209A - Abuse Prevention

Authority: If the Trial Court (usually the District or Probate & Family Court) finds abuse they shall order a family or household member to:

(a) refrain from abusing the plaintiff;
(b) refrain from contacting the plaintiff; and
(c) vacate and stay away from the household, multiple family dwelling, and workplace.

The Court can also award the plaintiff temporary custody of any minor children and provide for visitation or child support.

Standard: A family or household member includes persons who:

(a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage;
(d) have a child in common regardless of whether they have ever married or lived together; or
(e) are or have been in a substantive dating or engagement relationship.

“Abuse” is defined as "the occurrence of one or more of the following acts between family or household members:

(a) attempting to cause or causing physical harm;
(b) placing another in fear of imminent serious physical harm;
(c) causing another to engage involuntarily in sexual relations by force, threat or duress."

Time limitations: "Any relief granted by the court shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order."

3. M.G.L. c. 208, § 18 - Pendency of action for divorce; protection of personal liberty of spouse; restraint orders authorized

Authority: In a divorce action, the Probate & Family Court may prohibit the husband or wife from placing any restraint on the personal liberty of the other.

Standard: The Court may "make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty."

Time limitations: Under Champagne v. Champagne, 429 Mass. 324 (1999), these orders may be permanent, until further order of the Court.

The Kramden's and Litigation:

Ralph is a bus driver and Alice is currently unemployed but has worked as secretary at times when Ralph has been laid off. They have no children and Alice is primarily responsible for the management of the finances. Ralph often gets involved in ridiculous schemes that Alice claims have wasted their money. Ralph and Alice often insult each other, and Ralph makes constant threats such as "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!."

Recently Ralph was caught using his cell phone while driving and lost his job as a bus driver. When he came home and told Alice she berated him for his stupidity and Ralph became extremely angry. He got right in Alice's face and said, as he so often has, "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!." Alice replies "I'd like to see you try" and in response Ralph steps closer to her and pulls back his arm making a fist. Rather than wait to see if Ralph would actually hit her, Alice immediately backs away. Ralph does not follow her, but Alice is afraid and leaves the apartment.

She goes into a friend's apartment down the hall and calls the police. The police arrive and after interviewing both parties they indicated that they are not going to arrest Ralph. They ask Alice if she wants to request a 209A restraining order against Ralph and she states that she does. The police call the emergency Judge who approves an emergency restraining order. The police escort Ralph out of the apartment who has calmed down and accepts the police's request without any fight or argument.

Ralph, escorted by the police, collects some of his clothes and moves in with his friend, Ed Norton.

The following morning, Ralph and Alice both show up without lawyers at a hearing in the Suffolk District Court. Alice indicates during the hearing that she was afraid that Ralph was going to hit her during their argument, even though he has never carried out his threats in the past. Alice also states that she is not afraid of him right now and that she feels safe so long as he does not move back in. Alice also indicates that she intends to file for Divorce and that she doesn't want Ralph to move back in. Ralph agrees that he won't move back in and that he will continue to live with Ed. The Judge indicates to Alice that he can only extend the Restraining Order if she has a "reasonable fear of imminent serious physical harm," and given her testimony he cannot extend the restraining order.

Both Ralph and Alice consult with attorneys. Alice does not consult with a free Legal Aid service because she is back to working as a part-time secretary and she believes that she does not qualify for their services.

Alice borrows money from a friend to hire the attorney she consulted with because she doesn't feel safe negotiating directly with Ralph. Alice's attorney files a Complaint for Divorce.

Eventually right before the Pre-Trial, Ralph hires an attorney as well and the Divorce case is settled via Separation Agreement at the Pre-Trial. Both parties end up with some debt because of the cost of their legal fees.

COULD THIS HAVE GONE BETTER: Unfortunately, when domestic violence is an issue in a case, it is practically impossible to make use of mediation or collaborative law. Although mediation or collaborative law could have been cheaper, both options depend on a certain amount of trust between the parties and it is necessary for there not to be any threat of coercion.

Even in an instance where no physical violence has occurred, the threat of violence can be just as damaging and puts the victim at a disadvantage in any negotiation (notwithstanding the ongoing safety concerns).

As was suggested by one of our voters, DGVE law, Alice, might have been better served by having a trained domestic violence advocate work with her. Resources for domestic violence victims in Massachusetts are available here. Alice should have also discussed her case with potential legal aid services before assuming she didn't qualify. Resources related to finding legal counsel and/or legal services are available here.

President Obama on September 30, 2009 proclaimed October, National Domestic Violence Awareness Month.

As with any issue that endangers the health, safety or welfare of individuals, the first step towards ending that danger is to raise Awareness.

It seems that we are bombarded everyday with walkathons, and fund raisers, and pharmaceutical commercials that want to raise our Cancer Awareness, our Heart Disease Awareness, even our Awareness of Erectile Dysfunction. It becomes easy to forget that there are dangers in this world, and even in our own backyard, that don't stem from viruses or diseases. There are dangers, such as Domestic Violence that aren't caused by hunger or a germ, but instead by poor choices and a failure of support.

It's hard to know if there will ever be a cure for cancer, but we know the cure for Domestic Violence. A safe home and access to justice can provide victims of Domestic Violence with a voice to end their suffering.

If you or someone you know suffers from Sexual or Domestic Violence, call the National Domestic Violence Hotline at 1-800-799-SAFE, or if you live in Massachusetts check out these resources available on the Massachusetts State website, and seek help.

If you are served with a Complaint for Protection from Abuse (sometimes referred to as a 209A Restraining Order because of the statute: M.G.L. c. 209A) then your name and the Complaint are recorded in the Domestic Violence Record Keeping System which is visible to Judges and law enforcement officials (and certain airport personnel) through CARI (Court Activity Record Information), a subset of CORI (Criminal Offender Record Information).

In tonight's episode of Community ("The Psychology of Letting Go" on NBC) one character treats his Restraining order like a force field. By moving towards the defendant, he forces the defendant of the restraining order to move away so that the defendant can stay at least 25 feet away.

In reality, restraining orders are not force fields. Although, a plaintiff cannot technically violate their own restraining order, a Judge will likely vacate the restraining order if they find out that the plaintiff has been contacting or approaching the defendant. That type of behavior demonstrates that the plaintiff is not in fear of the defendant.

In Massachusetts, M.G.L. ch. 209A provides that a plaintiff can obtain an abuse prevention order (commonly referred to as a restraining order) if there is attempted or actual physical harm or "placing another in fear of imminent serious physical harm." If a plaintiff is able to approach or contact the defendant then that is strong evidence that they are not in fear of imminent serious physical harm.