Under G.L. c. 209A a civil court order can be granted to a family, household member, or a current or former dating partner, who believes they have been abused and want protection. It is all too common that restraining orders are motivated by unrelated domestic disputes or personal issues. If someone is initiating a restraining order against you or you are being charged with violating a restraining order you need an experienced attorney to protect your rights. It is important to note that even though a restraining order is a civil order, it will show up on your criminal record. Additionally, if you are charged with a violation, it will permanently show up on your criminal record regardless if you win at trial, the case gets dismissed, or the prosecutors decide not to prosecute. Once an order is issued the Plaintiff will have tremendous power over you which includes reporting a violation where you could be charged with a violation, and/or arrested.
Ex Parte Restraining Order hearings
Most applicants for restraining orders appear in court alone, or “ex-parte,” to testify before a judge as to why a restraining order should be issued. It is important to note that the defendant does not need to be put on notice of this hearing. The plaintiff will file an affidavit at the hearing outlining the reasons for the restraining order request. The court will then decide if the plaintiff has shown, by a “preponderance of the evidence” (at least 51% likely), that a substantial likelihood of imminent danger of abuse exists. If so, a temporary restraining order will be issued.
The defendant, even if aware of the temporary restraining order hearing, cannot challenge the plaintiff at this time. At the hearing for a permanent restraining order, usually 10 days after the issuance of a temporary order, (when the defendant is served with a copy of the temporary order) the defendant can finally respond to the allegations. The defendant will not be served with the Plaintiff’s affidavit, but usually can obtain a copy on the day of the hearing.
Hearing for A Permanent Restraining Order
After notice is given to the defendant of the temporary order, a permanent order hearing is held to determine if the restraining order will be extended for one year. This hearing is where the defendant can respond to the allegations in front of the court. The defendant can offer testimony, evidence, cross-examine the plaintiff, and/or call supporting witnesses. If the plaintiff does not appear, the temporary order will expire that day.
Violating a valid restraining order is a criminal offense and can result in jail time for a period of up to 2 ½years and a $5000.00 fine.
