Restraining Orders

The Law Offices of Kevin J. Mahoney P.C

If someone is seeking a restraining order against you, you should strongly consider retaining an experienced criminal defense lawyer to represent you at the hearing. While a restraining order is a civil order, it appears on your CORI (criminal record). A restraining order gives the recipient enormous power over you; the complainant need only telephone the police to report having seen you drive by her home to have you arrested – which if true, of course, is a crime. Moreover, if you have already been arrested because the complainant accused you of domestic assault and battery or some other crime, the hearing on the restraining order may be your lawyer’s only chance to cross-examine the complainant. Such an opportunity may prove critical to your defense.

Attorney Mahoney has successfully represented countless clients at restraining order hearings. Give Attorney Mahoney a call at 617-492-0055 to arrange for a free in-office consultation.

In general

Under G.L. c. 209A a “family or household member” who claims to have suffered abuse can apply to the appropriate District Court for restraining order to protect her against the alleged abuser. If the alleged victim is neither a family member nor household member of the alleged abuser, the alleged victim must apply to the Superior Court for injunctive relief. The following summary applies only to restraining orders sought or granted in District Court pursuant to G.L. c. 209A. An alleged victim seeking relief pursuant to G.L. c. 209A is initiating civil, not criminal, proceedings, against the alleged abuser. This is true, even if the alleged abuse is also being prosecuted criminally. Violation of a valid restraining order is a criminal offense. As in most civil proceedings, the party initiating the process, the alleged victim, is referred to as the plaintiff and the responding party, the alleged abuser, is referred to as the defendant. Since the vast majority of plaintiffs are females, and the vast majority of defendants are males, the plaintiff will be referred to in the feminine terms and the defendant will be referred to in asculine terms.

Relief Under G.L. c. 209A is Limited to Family/household Members

Back to top

Only a family and/or household members can obtain a restraining order pursuant to 209A. Our Supreme Judicial Court has interpreted who qualifies as a family or household member very broadly. Family and/or household members include persons:who are or were married

Procedure for Obtaining a Restraining Order Pursuant to 209A

Back to top

The Ex-Party Hearing for a Temporary Order

During regular District Court hours, the plaintiff must complete an application for a restraining order at the court. The plaintiff must submit an affidavit is which she details her accusations. If the plaintiff is asking for immediate issuance of a restraining order, the court will grant her an ex parte hearing that day. At the ex parte hearing, the court hears only from the plaintiff, her lawyer, or the victim witness advocate. Not only is the defendant not present, he will be given no notification that a hearing, which greatly affect his rights and liberties, will be held. At the hearing, the plaintiff will be sworn and testify before the court. If the judge finds that the plaintiff has demonstrated, by a preponderance of the evidence (i.e., more likely than not true) the existence of a substantial likelihood of immediate danger of abuse, the court can issue a temporary ten- day restraining against the defendant. At the conclusion of the hearing, the judge will schedule a second hearing – which will be held before the expiration of the temporary order. The defendant will receive notice of this hearing when he served with the temporary restraining order. Although the defendant did not participate in the selection of the hearing date, he may find it difficult to change that date.

The Emergency Telephone Hearing for a Temporary Order

If the plaintiff desires an emergency restraining order outside of regular business hours of the court, the local police will contact the “on call” judge by telephone. The judge will hold a “hearing” via the telephone. The plaintiff will be required to give the judge sworn testimony to substantiate her accusations. This order is only good until a hearing in open court can be conducted.

The Hearing for “Permanent” Order

At this hearing, the plaintiff will be sworn and will be required, as she was at the hearing on a temporary order, to give testimony in support of her application for a year-long restraining order. Both parties may call supporting witnesses to testify. The defendant is under no obligation to attend this hearing. Should the defendant attend, he will likewise be sworn. The defendant, however, need not testify nor answer any questions. The defendant retains his 5th Amendment Right against self-incrimination. If the defendant is facing criminal charges, he may want to refrain from giving testimony. Because the hearing is usually attended by a victim witness advocate and the hearing is tape recorded, the defendant’s statements may be later used against him by the prosecutor at a criminal trial or at sentencing. The defendant is entitled to be represented by counsel at the hearing, but the court will not appoint counsel to represent him.

A.The Hearing is Informal

Although the hearing is usually held in a courtroom, the hearing itself is rather informal, insofar as the plaintiff is not expected to take the stand and the court dispenses with the rules of evidence. In fact, the appellate courts have ruled that many of the protections afforded a defendant in a criminal proceeding may be disregarded during this civil hearing. The parties usually stand immediately before the bench, separated by only a few feet and maybe a court officer.

B.The Right to Cross-Examine the Plaintiff

At the hearing, the defendant has the right to examine the affidavit that the plaintiff submitted in support of her application. Many police departments will not serve the affidavit on the defendant and he may get his first look at the accusations at the hearing. Requiring a defendant to respond to accusations that have only been disclosed to him moments before is obviously unfair and undermines the fairness of the proceedings. The defendant has the right to cross-examine the plaintiff, but the judge has discretion to abridge this “right” for “good cause.” A defendant who represents himself at this hearing will likely find the court severely restricting his cross-examination of the plaintiff. Court’s are on high alert to the possibility that a defendant will use his right of cross-examination to harass or abuse the plaintiff. A lawyer representing a defendant will be given much greater leeway during cross-examination. If the defendant is also facing criminal charges initiated by the plaintiff, the defendant cannot afford to ignore the opportunity offered in cross-examine to probe the plaintiff’s accusations and test her credibility. The concessions, admissions, and “hard facts” developed during cross-examination of the plaintiff can prove to be the difference, at a subsequent criminal trial, between conviction and possible incarceration and an outright acquittal.

Relief that a Court Can Grant to a Plaintiff

Back to top

If the District Court grants the restraining order, it can order the defendant to:

Length of Restraining Order

Back to top

A so-called “permanent” restraining order may be granted, pursuant to 209A, for up to one year. The plaintiff may appear before the court and ask the court to renew the restraining order for up to another year. The defendant will be given notice of this hearing and be allowed to offer testimony and to cross-examine the plaintiff. If the plaintiff does not appear before the court to request that the restraining order be extended, the order will expire

Appeal of the Issuance of a 209A Restraining Order

Back to top

The only way to challenge the issuance of a 209A restraining order is by petitioning the single justice of the Supreme Judicial Court for relief pursuant to G.L. c. 211, §3.

Practice Areas