Unfortunately, physical, psychological, and economic power may be used to exert control over another household member or when there is a substantial dating relationship, resulting in physical, psychological, sexual, or economic abuse. Obvious examples of domestic violence include physical assault, forced sexual contact, and threats to kill or harm the abused person, their friends or relatives, or even their pets.
Frequently, an abuser will isolate the victim from family members and friends and try to control the victim's schedule, activities, and financial resources. Victims of domestic abuse may feel trapped, and afraid to leave the abuser because of threats of more serious harm or death. Research shows that victims are in the most danger when they attempt to end an abusive relationship. Although the majority of domestic violence victims are women, men are also subject to abusive relationships.
In Massachusetts, Mass. General Laws c. 209A was enacted in 1978, and has undergone updates to better protect victims and mandate certain responses from law enforcement and others.
Chapter 209A applies to family and household members who:
- Are or were married to one another
- Are or were residing together in the same household
- Are or were related by blood or marriage
- Have a child in common even if they have never been married or lived together, or
- Are or have been in a substantive heterosexual or homosexual dating or engagement relationship.
To determine whether there is a substantial dating relationship, the court will consider the length and type of relationship, the frequency of interactions between the parties, whether the relationship has been terminated by either party, and the length of time that has elapsed since the termination of the relationship.
Definition of Abuse Under C. 209A
Abuse is the occurrence of one or more of the following acts between family or household members:
·Attempting to cause or causing physical harm
·Placing another in fear of imminent serious physical harm
·Causing another to engage involuntarily in sexual relations by force, threat of force, or duress.
Abuse Prevention Orders and the Probate and Family Court
Note: Abuse Prevention Orders are sometimes referred to restraining orders.The Probate and Family Court has superseding authority over the Boston Municipal, Superior Court, and District Court when it comes to abuse prevention orders, child visitation orders, and custody orders. The Probate and Family Court may modify, extend or vacate a 209A obtained in the District Court, Boston Municipal Court, or the Superior Court. Judges must also consider evidence of domestic violence, including Abuse Prevention Orders, when making decisions regarding child custody and visitation. The court will consider past or present abuse toward a family or household member as a rebuttable presumption that such abuse is contrary to the best interests of the child.
What Can the Court Order?
No Abuse, No Contact, and Stay Away Orders
The court may issue and order to a defendant to stop abusing the plaintiff, and may also include orders for the defendant to refrain from contacting the plaintiff and to stay away from the plaintiff, unless authorized by the court. If the judge grants an Abuse Prevention Order, the court may order the defendant to:
·Refrain from further abuse of the victim;
·Refrain from contacting the victim directly or indirectly;
·Move out of the residence shared with the victim and/or stay away from the victims residence, place of work, or family's house;
·Temporarily relinquish custody of any minor children;
·Pay the victim for any money lost as a result of the abuse (ex. Medical bills, lost wages, etc.);
·Pay temporary support to the victim and/or minor children where defendant has a legal obligation to support them or pay expenses related to the marital residence;
·Surrender keys to the house; and/or
·Refrain from abusing the plaintiff's minor children.
·Surrender firearms and firearms license to the police
No contact and stay away orders are generally broadly interpreted, meaning a defendant will not be able to call, email, or text a plaintiff, or try to communicate through third parties. Other actions, such as driving by the victim's residence, following the victim's car, or going to the defendant's workplace are also violations in almost every instance.
Jurisdiction and Venue – Where to obtain a Massachusetts Abuse Prevention Order?
Abuse prevention orders may be sought in four different departments of the trial court system, including the:
1. Probate & Family Court
2. District Court
3. Municipal Court
4. Superior Court
A person making an application for an Abuse Prevention Order cannot just go to any court however, as the court must be in the proper venue, meaning if you live in Norfolk County, you would go to the Probate & Family Court in Norfolk County, or the correct District Court for your town. Furthermore, if you have a case before the Probate and Family Court, it is best to return to the Probate and Family Court for an Abuse Prevention Order if possible.
How to Obtain an Abuse Prevention Order
There are two ways to obtain an Abuse Prevention Order. The first is to go to any of the above-mentioned courts during their operating hours and complete an Application for Abuse Prevention Order in the Clerk's Office. As part of this application, the plaintiff fills out an affidavit, which should state the facts and circumstances of the most recent incident of abuse as well as any historical instances of abuse. The plaintiff should note in their affidavit any incidents involving weapons, prior restraining orders, alcohol or substance abuse along with examples of manipulative, controlling, blaming or possessive behaviors by the defendant.
Next, the plaintiff will be heard by the judge, even though the defendant is not present. If the judge finds by a preponderance of the evidence based upon the written affidavit and sworn testimony of the plaintiff that there is a substantial likelihood of immediate danger of abuse, the court will issue a 10-day temporary restraining order. The plaintiff will keep a copy of this order and the police department will be also get a copy of the order. The police department will then attempt to serve the defendant with their copy of the order without delay. The order will notify the defendant of their right to be heard at the 10-day hearing.
If the plaintiff fails to attend the 10-day hearing the order will be vacated, meaning it will not renew. The defendant may choose whether or not to attend the 10-day hearing. However, if the defendant does not attend the order will be extended. At the 10-day hearing, the judge may extend the order for any length of time up to one year. The judge will set another hearing date at that time and the plaintiff must return on that date in order to extend the order for another period of time, or may request the judge make the order permanent
Emergency 209A Orders
Because domestic abuse is not limited to the court's Monday through Friday operating hours, an emergency Abuse Prevention Order may be obtained with the assistance of the police department or through the police responding to an emergency. The police will telephone the on-call judge who will speak with the plaintiff and decide whether or not to issue an emergency restraining order. If an emergency order is issued, the victim must appear in district court the next business day to formally apply for a restraining order and follow the same process as detailed above.
If you are in danger or have been the victim of domestic abuse, there are a number of organizations and agencies, both public and private that can assist you.
Served with a 209A Order?
If a restraining order has issued against you, read the order carefully and make sure you do not violate it. Contact an attorney for assistance to discuss your options and rights. If you are involved in a divorce, the existence of an Abuse Prevention Order will have a negative impact on your case, so do not delay in seeking out a Massachusetts restraining order and domestic violence attorney for help.
For additional resources about domestic abuse, please click here.
The above link will bring you to the Jane Doe, Inc. website, a Massachusetts agency providing more information and resources for domestic violence victims.
Medfield domestic violence and restraining order lawyer, also serving Walpole, Westwood, Norwood, Franklin, Canton, Foxboro, Dedham, Norfolk, Millis, and Dover, Sherborn, Wayland, Weston, Mansfield, MA areas.