Restraining Order Basics
This article will explain the procedure that a plaintiff uses to get a domestic abuse restraining order against a defendant, describes the types of hearings involved, and gives you basic definitions of abuse in the law.
How the Law is Organized and Located
The law which authorizes domestic abuse restraining orders is found in Massachusetts General Laws, Chapter 209A. The laws in our state are organized into "chapters", each of which addresses a particular general topic.
Chapter 209A consists of fifteen sections, in which each sub-topic of the law is set forth systematically. These sections are badly written, leave out a lot of important information, and are vague, over-broad and confusing.
What Is "Abuse" In the Law?
The law defines "abuse" in a specific way, restricting it to three different possibilities. If you have not committed one of the three types of abuse as defined in this law, a restraining order should not be issued against you, at least in theory.
Section 1 of Chapter 209A sets out three different definitions of “Abuse”. No serious person could define abuse this way, but here it is. In order to get a restraining order, the plaintiff (the person who is bringing the case to court) has to prove that the defendant (the one who is defending) committed one of the following three acts of "abuse". The exact words of the law are:
“Abuse, 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.
To oppose a restraining order in court, you must testify about facts which show the judge how none of these three definitions apply to you and your actions. If you do that, the judge will know that he or she is dealing with someone not as easy to run over as the average schlub.
Let’s look at each of these definitions in some detail.
The first definition of abuse is “Attempting to cause or causing physical harm.”
This is extremely bad legal writing, leaving room for vague interpretations of the word “harm” and the word “attempting”. What is physical harm? A bruise, a slap, a wound, broken bones, a hangnail? The law doesn’t say. Different judges have different standards.
And what is "attempting to cause harm"? Raising a hand? Saying that you will cause harm? Saying you wish you could cause harm, but wouldn’t? Trying to hit, but missing? How about if you say, “If I wanted to hurt you I could, but I'd never do that?” Many persons have said that to their antagonist, to show that they would not harm the other person. And, you can be SURE a judge will issue an order if you do.
Placing Another in Fear of Imminent Physical Harm
The second definition of abuse in Section One is: “Placing another in fear of imminent serious physical harm”.
These words are even more vague than the first definition of abuse, but it is also the most important. Most restraining orders are issued under this part of the law, so you really need to understand how judges interpret it.
Judges often start and stop by just looking at the phrase, “Placing another in fear”. But ‘fear’ itself is not enough. It has to be fear of something specific - "imminent serious physical harm". What do those words mean?
“Imminent” means “right now”. Not a vague promise to do something someday. Not a threatening call from Wyoming, from where you could not do something right now. It means harm that you could do right now, this minute.
“Serious”, as used in this law, means that the threat must be to do something very physically harmful, not just emotional or psychic harm, name calling, yelling, controlling, manipulation, or other psychologically harmful actions. Not that those are right or justified, only that they are not "serious" harm.
How serious is “serious”? The law writers left it way too vague. It should not be something like slapping a sassy kid in the mouth, or sending a child to bed without TV, or taking a cell phone, like a lot of orders are issued for. It should not be even punching the wall, kicking something, or doing minor physical harm to a person, although they would issue an order every time for that. At least under the actual language of law, any threat has to be to do serious harm, not just something silly or frivolous.
Finally, any threat must involve a promise of physical harm, not emotional, psychological, or financial harm. It can’t involve control of the other person, control of money in the house, or disciplining a teenager who doesn’t want the parent around or doesn’t want to obey. It must involve a threat of actual, physical harm. Blood, injuries, wounds. Not psychobabble.
Fear Must Be Reasonable
In addition to what the law says, courts add another requirement that is not in the text of the law. In written case opinions from appellate courts, any fear of harm has to be “reasonable”. If this doesn’t clear things up for you, you are not alone.
What is “reasonable” fear? Courts say that it means the kind of fear that a reasonably objective person would have if the act was done against him or her. That is opposed to a "subjective" fear, or inner and relative fear.
All clear now? Didn’t think so.
Some people are afraid of even the slightest conflict, and others have much thicker skin. There is no absolute standard for fear. For example, some people scream and flee if they see a spider or a bee, and others just brush it away. There is quite a range in what people fear.
We can perhaps assume a middle ground of fear. It really is a very subjective judgment. So, when in court, do all you can to show respect in all you do, including dressing up, speaking respectfully, and not interrupting the judge or any other witness. This will show the judge that you are a person who does not need to be feared.
Forced Sexual Relations
The third definition of abuse is to “cause another to engage involuntarily in sexual relations by force, threat, or duress.” Here, we suffer under an even vaguer definition. What is “duress”? It is defined in a law dictionary as “the use of force, false imprisonment or threats to compel someone to act contrary to his or her wishes or interests.” But, that is not the definition used in court.
So, what if you want sexual relations, and she says, “Not tonight, dear, I have a headache?” You say, “Oh, please, I really want you”, and she gives in and says “Oh, well, OK.“ Is that duress?
There is a large branch of feminism which regards all marital sex as rape, rather than mutually agreed activity. It is all about male power, all done under duress. There are also less intense versions of that belief, which puts the woman in full charge of “yes’ or ‘no’. That is what you are actually dealing with in most court situations, not what most people view as normal interaction, where people work out things between them.
Many cases involving sexual allegations also involve drunkenness and the allegations come later after regret for being involved in an encounter while not sober. Don't do that.
Who Can Get A Restraining Order?
A restraining order can only be issued by a judge if the parties are "family or household members" as defined by Section One of Chapter 209A as follows:
(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) having 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.
We’ll look at each of these in turn.
First, that means a person cannot get a 209A order against a neighbor, a stranger, or a person they do not know well. That can only be done with a “harassment order" under Ch. 258E. To get a restraining order, both persons must qualify as family or household members under one of the definitions in the law above.
Let's look at the five types of relationships:
A. “Persons who are or were married to one another.” That one is pretty clear. If you are or were married, then the law can apply to you, if all the other requirements are met, namely that there is “abuse”.
B. “Persons who are or were residing in the same household.” Now things get murky. Does that mean roommates? People in the next apartment? Many courts interpret that to mean a roommate in the same house. If you were cohabiting in an intimate relationship, that qualifies.
C. “Persons who are or were related by blood or marriage.” That means an in-law, a child, or some variety of relative, but it does not say how far removed the relative can be and still qualify. Does your ex-mother-in-law’s brother qualify? No one knows.
D. “Persons having a child in common regardless of whether they have ever married or lived together.” That one is simple. If there is a child, whether by marriage, one night stand, or anything in between, then either parent may use this law to get an order against the other.
E. “Whether the parties have been in a substantive dating relationship.” What? This one is really vague. Let's look at courts interpret it.
What is a “Dating Relationship”?
the law lists four factors for judges to evaluate as to whether the "dating relationship" falls under the law or not:
1. The length of time of the relationship. However, the law doesn’t say how long it has to be to qualify, so that doesn’t give us much clarity. A week, a month, a year? We don’t know.
2. The type of relationship, meaning anything from friendship to living together in sexual intimacy. The more intimate, the more likely it will qualify.
3. The frequency of interaction between the parties. Phone calls, visits, living together? Going out every Friday night together to the Moose Lodge? Again, we don’t have a clear objective standard.
4. If terminated, the length of time elapsed since the termination of the relationship. There is no specific time set out in the law that has to elapse since the relationship ended. Is it a month, six months, a year. No one knows.
If your case comes out of a dating relationship, rather than a marriage or having children, you have an opportunity to win before you even get to the issue of whether there is abuse or not, by showing that it was too long ago, or the relationship was too brief to really qualify under this law. Since the standard is vague, you have ample room to argue for your viewpoint. How exactly to make these arguments will be covered in depth later.
You should review the information at Guidelines for Judicial Practice: Abuse Protection Orders, Section 3:02 and its commentary. It will help a little.
Really Five Variations of Restraining Orders.
Even though there is one form of restraining order in Massachusetts, there are really five variants or types, based on substantial differences in how a person can get one, and how long each type lasts.
The first category is called an emergency order, which is obtained by simply calling the local police and asking for an order. Yes, it is that simple.
Ask and you shall almost always receive. Section 5 of the Restraining order statute allows a person to merely make a call, claim fear of abuse, and ask for a restraining order.
When the police get such a call from a person who wants a restraining order, they in turn phone an “on call” judge any time of day or night. There is always a judge on duty to take these calls for restraining orders around the clock, every day of every year. The judge can - and usually does - issue an order over the telephone to the police officer. The officer writes the relevant information about the parties on a form, notes that the judge has approved it, and then the police delivers it to the defendant, the person who is the target of the order.
Sometimes the only notice to the defendant is by a telephone call from the police officer to the target, and that has been ruled sufficient notice under the law.
If the defendant is in his home with the plaintiff when the police serve the order, the police eject him with virtually nothing but the clothes on his back.
These orders are only good until the next day that the court is open, when they can be converted into the second category or type of order. A very large number of such orders are issued every day, since they are easy to get, and very hard to remove, once in place.
So Called “Ex Parte” Orders
The second type of order is called an “ex parte” order, which is a Latin term meaning “for one party” or “for one person”. The reason that they are called that, is because only one of the two people involved is at the court, namely the plaintiff, with no notice to or attendance by the Defendant. The law authorizing this kind of order is found in Section 4 of Chapter 209A.
This second method is used to originate many restraining orders based on false allegations, since they are especially easy to get, and the only requirements are that the court is open, and the plaintiff can convince the judge that she feels fear of abuse.
While some orders are started with the late night phone call to a judge, most are begun with this second type - the ex parte order.
To get the order, the Plaintiff goes to court and fills out a three page application, with help of an on-site advocate. The application includes an “affidavit”, which is a statement under oath stating the facts about what abuse or fear of abuse happened.
Then, the applicant goes in front of the judge for a few minutes, takes an oath, and tells the judge about the alleged abuse or fear of abuse. The technical standard for granting the order is the plaintiff has to “demonstrate a substantial likelihood of immediate danger of abuse.”
Without the other person in court to argue the other side of the case, it would be hard to lose, since anyone can make something sound dreadful and scary. Thus, judges almost always grant these ex parte orders. .
This ex parte type of order is issued for only ten days at the most, and then both sides have to come back to be heard at a "return" or "ten day" hearing.
If an order is issued, then the court faxes it to the police station where the defendant lives, and a police officer brings or “serves” it on the defendant. If the defendant is living in the home of the person who got the order, he gets thrown out of his house, is kept from his children, and has to stay a certain number of yards away from the plaintiff.
A hearing is set for around ten days away at the court, where the defendant can contest the order. Meanwhile, while waiting, there is nothing the defendant can do to put a shattered life back on track until that hearing in ten days..
If it sounds unfair not to give notice to the other person involved in a critical legal matter that can result in the loss of a house, children, job, guns, and reputation, well, it certainly is.
A scholarly study of the records of the Quincy, Massachusetts District Court showed that 100% of the one-party requests for a restraining order resulted in an order being issued by the court. Every single woman - and it was all women - who wanted one, got one. That means the court thought no one lied, no one made anything up, no one had an ulterior motive.
eturn (or Ten Day) Hearings
That brings us to the third type of hearing - a so-called “return hearing”, or “ten day hearing”. After the ex parte, or one-sided order, the defendant is finally allowed to come in and tell his side of the story. He actually gets notice of that hearing, because he has been served with the order, with the date of the hearing.
During most return hearings, both people get to make their case. Most of these hearings are fairly brief, because the defendant usually hasn’t had enough time to prepare, or just naively believes that if he simply tells the truth, justice will be done. The reality is that most of the orders are upheld, based on the previous finding of abuse was sufficient.
At the return hearing, the court can terminate (get rid of) the order, or it can issue a further order for any length of time up to a year.
Extension and Permanent Hearings
The fourth type of hearing procedure is an extension of the restraining order on its one year (or shorter) anniversary. The standard at such hearings is "whether there is a continued need for the order." The judge assumes it was issued properly at first, and is just looking to see if there is still the potential for abuse or fear, in which case it is extended. You can't challenge the original evidence or basis for the order at the extension hearing.
Finally, there are hearings on so-called “permanent” orders, the most deadly kind of all. They can be issued any time after the first year, and often are. They are in effect forever unless and until you file a motion to vacate them.
Many defendants do not come prepared for the possibility that the plaintiff will ask for the order to be made permanent. You should be ready to show why it should not be.
Orders are made permanent when there have been criminal violations of the order, when the original abuse was especially severe, when the situation which prompted the order has not resolved, or when the the defendant has a long record of past abuse.
What Restraining Orders Do - "Stay-away" and "No contact"
The real teeth of a restraining order are the so-called “stay away” and “no contact” parts. The “stay away” clause requires the defendant to stay some distance - usually 100 yards - away from the plaintiff, from the plaintiff’s home, the plaintiff’s work, or anywhere the plaintiff is. It is a type of floating "bubble zone."
The “no contact” provision means that the defendant may not try to contact the defendant in any way - by mail, phone, email, facebook, text, any social media, or by using another person as a go-between for indirect contact.
Any violation of these rules is a crime, punishable by up to two and a half years in the House of Correction and a $5,000.00 fine.
Any violation will also result in almost immediate arrest, usually with massive police over-reaction. If it is at night, you don't get bail, and have to appear at the next District Court session.
Sometimes a judge wants to do something less drastic, and will issue only a “no abuse” order, rather than the no contact or stay away type. This is really no order at all, because it permits you to still live with and talk with the person, but just prohibits abuse. Hopefully, that is something you were never thinking of doing in the first place.
One Way to Win - Attention to the Restraining Order Application
This discussion should suggest a powerful defense for a certain limited group of people - challenging whether you are a “family or household” member.
Some people can use this defense, and when it is played properly, it is game winner. If the court does not have jurisdiction over the persons involved, it cannot hear the case, no matter how nasty the allegations of abuse are.
For some people, this is a non-starter, If you were married or had a child, you cannot escape on this ground. But if not, there is fertile ground to challenge whether the case can even be heard, regardless of its substance.
If the person making the complaint does not fall into one of the five categories of family or household members set out above, then you can get rid of the order right away, before you even get to the actual allegations.
You state, "Your honor, there is an issue to address before we start, about whether we are family or household members. Then, you explain how there is no necessary “family or household” relationship between the parties in the case as defined in Section One of Chapter 209A, and the court must dismiss the matter without going any further.
Chapter 209A, Section 4
Upon the filing of a complaint under this chapter, the court may enter such temporary orders as it deems necessary to protect a plaintiff from abuse, including relief as provided in section three. Such relief shall not be contingent upon the filing of a complaint for divorce, separate support, or paternity action.
If the plaintiff demonstrates a substantial likelihood of immediate danger of abuse, the court may enter such temporary relief orders without notice as it deems necessary to protect the plaintiff from abuse and shall immediately thereafter notify the defendant that the temporary orders have been issued. The court shall give the defendant an opportunity to be heard on the question of continuing the temporary order and of granting other relief as requested by the plaintiff no later than ten court business days after such orders are entered.
Notice shall be made by the appropriate law enforcement agency as provided in section seven.
If the defendant does not appear at such subsequent hearing, the temporary orders shall continue in effect without further order of the court.