Defending Those Accused of Violating a Restraining Order
Being charged with violating a restraining order can leave you feeling bewildered, alarmed, and discouraged. Many individuals accused of violating a restraining order issued pursuant to G.L. c. 209A were unaware at the time they violated the order that it would be so broadly interpreted, aggressively enforced, and severely punished. A Cambridge, MA Restraining Order Lawyer can help. We have successfully defended those accused of violating restraining orders in the District Courts of Cambridge, Woburn, Waltham, Newton, Somerville and Boston.
While no doubt some individuals need restraining orders to protect themselves from violent ex-spouses, boyfriends, girlfriends, and family members, the majority of those seeking restraining orders do so to punish the intended recipient for some disagreement or for breaking off the relationship. The “defendant” then telephones his ex in an attempt to reconcile or to apologize and quickly finds himself under arrest. That the defendant did not intend to violate the order or that his intentions were benign or even well meaning matters little to the police.
A conviction for violating a restraining order is punishable by a fine of not more than five thousand dollars, or by imprisonment for not more than two and one-half years in a house of correction, or by both such fine and imprisonment.
Contact a Cambridge Restraining Order Lawyer
Attorney Mahoney has successfully defended clients accused of violating restraining orders. In fact, not one of his clients has ever been convicted of violating a restraining order or pled guilty to violating a restraining order. Moreover, Attorney Mahoney is one of the few lawyers in Massachusetts to convince a district court to expunge such an order from a client’s record.
Contact us at 617-492-0055 to schedule a free in-office consultation with Attorney Mahoney.
Restraining Order Info: The Essentials
- In general
- Relief Under G.L. c. 209A is Limited to Family/household Members
- Procedure for Obtaining a Restraining Order Pursuant to 209A
- Relief that a Court Can Grant to a Plaintiff
- Length of Restraining Order
- Appeal of the Issuance of a 209A Restraining Order
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 a 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 masculine terms.
Relief Under G.L. c. 209A is Limited to Family/household Members
Only a family and/or household members can obtain a restraining order pursuant to 209A. The 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
- Who are or were residing together
- Who are or were related by blood or marriage
- Who are parents of a child who are or were in substantive dating relationship;
In assessing whether a “substantive dating relationship” existed, the Courts will consider:
- The length and character of the relationship
- The frequency of interaction
- The status of the relationship
Procedure for Obtaining a Restraining Order Pursuant to 209A
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 in 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 in 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 order 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 is 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 reschedule the hearing.
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. 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, as he retains his 5th Amendment Right against self-incrimination. If the defendant is facing criminal charges, he may want to refrain from giving testimony. Any testimony he offers at the hearing may later be 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.
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.
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
If the District Court grants the restraining order, it can order the defendant to:
- Refrain from abusing the plaintiff
- Refrain from contacting the plaintiff, either directly or indirectly
- Move from a shared residence
- Stay away from the plaintiff’s residence and/or workplace
- Stay away from the plaintiff’s person (i.e., “1000 yards away”)
- Temporarily relinquish custody of minor children
- Surrender to the police any weapons
- Pay temporary financial support to the plaintiff and/or minor children (support, custody, and visitation until matters are “permanently” resolved in Probate Court)
Length of Restraining Order
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. He will 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
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.
Recent Results
Commonwealth v. M.B., Cambridge District Court
Violating Restraining Order: Dismissed
Client was accused of telephoning the complainant on three occasions in violation of restraining order. Attorney Mahoney persuaded the Court to dismiss the criminal complaint by arguing that merely telephoning the complainant, without actually speaking with her, and that the Client was entitled to call the home to speak with his child.
Kevin J. Mahoney is a Cambridge, MA Restraining Order Violation Lawyer who defends those accused of violating restraining orders throughout the District Courts of Massachusetts.
