Category Archives: Domestic Violence

How can I get rid of a DV Restraining Order?

In MA, the process of “vacating” (using the legal term) or modifying a 209A Abuse Prevention Order, i.e a Restraining Order or “RO”, depends on a number of factors: (a) which court issued the RO (b) whether you are the victim/complainant or the defendant (c) whether there was an arrest and criminal charges were filed by the State against the defendant (d) whether the RO has already been extended.

Any court of law or equity with competent jurisdiction can issue a Restraining Order in MA (District Court, Probate & Family Court and Superior Court).  Most typically, an injured party will file an Ex Parte Complaint for an Abuse Prevention Order under M.G.L. c. 209A in the District Court. The process in the District Court is deliberately simplified so as not to impede justice where a party has a legitimate grievance and is in danger if imminent harm. All that is required is for a party to complete the Complaint form and an affidavit stating the particulars of the allegations, then appear before the judge that same day (or night) and attest to the allegations contained in the Complaint and Affidavit, wherein they state under oath that they are in fear of harm from the alleged defendant.  The alleged defendant does not have to be present for the order to issue.  The police will be notified of the RO and the police will be charged with the obligation to serve the notice and RO upon the defendant.  ROs may cause or become part of a defendant’s record.

There is no bar to applying for an RO because another proceeding between the parties is pending in another court.  So that even if you are in the midst of a divorce or custody or support proceeding with the defendant, you can still file for an RO in the District Court, should a viable threat arise.  However, the District Court has limited jurisdiction in this regard: the District Court can issue the RO, which can include a full stay away order, and temporary custody if applicable, and a temporary child support order; BUT, it cannot litigate these issues to disposition.  The petitioner will have to transfer the order to an appropriate court (The Probate & Family Court) for a final judgment.  The sole purpose of the District Court RO is to place a legal shield between the complainant and the defendant to try to prevent immediate harm.

Another way to obtain an RO is to apply for it in your pleadings or by motion to the Probate & Family Court when a matter is commenced or pending before it. Lastly, a RO can be issued by the Trial Part of the Superior Court during a criminal case if either the Court or a witness who believes it is necessary applies.

An RO issued by the District Court can be “incorporated” into another proceeding involving the same parties in an action in another court, e.g. in a divorce or criminal prosecution.  This is done by motion. RO proceedings are distinguished from the universal prohibition of seeking relief in one court while a matter between the same parties is pending in another.  The law permits this exception to the prohibition on concurrent proceedings to afford expedited protection.  The same relief (restraining the defendant) sought in another court would take longer and involve more “process” than the District Court regulations require.

In order to un-do a Restraining Order issued by the District Court and not yet incorporated to another proceeding, the party wishing to vacate the order must apply to the issuing court by motion.  If you are the defendant, you should request a copy of the Complaint and Affidavit upon which the order was issued.  In order to have the RO vacated, you must convince the court that each and every of the allegations raised in the Affidavit are false.  The defendant has limited “discovery” tools available, unlike a conventional divorce or criminal proceeding because the 209A process in the District Court is an expedited proceeding, and lengthy discovery would defeat the purpose of its authority. A defendant has some subpoena power, but no deposition or demand for production of documents powers.  However, hearsay is admissible. You have the right to bring witnesses and to cross examine any witnesses produced by the Plaintiff/complainant giving sworn testimony.  Affidavits of friends or family, unaccompanied by live, in-court testimony, are not admissible.

The burden of proof for the defendant is very high, and unless you are attempting to vacate the Ex Parte order before it is extended, the chances of prevailing are very slim. (In the Ex Parte process described above, the court may issue the order outside of the presence or knowledge of the opposing party/defendant, but will require that the absent party be notified and served with the Order, and will be given a short date to appear in court and argue why the order should be dismissed before the court extends the order–typically for 6 months or one year.)  This first hearing is the most likely time to vacate the temporary RO–before it is extended.  If the Petitioner and the defendant agree that they no longer wish to have the RO in place, the court will most likely discontinue the order if there has been no arrest and if the defendant’s alleged conduct  does not rise to criminal.

The RO will have a definite date when it expires.  The petitioner may return to court on or before that expiration date and ask the court to renew the Order, if circumstances between the parties has not improved and there is still a threat of harm.  Both parties must have notice of and opportunity to be heard at the hearing.  At this point (the hearing to extend the order), it is virtually impossible to vacate the order because the facts have been reaffirmed by the petitioner at the time of the first hearing after issuance of the RO–when the defendant was given notice and opportunity to appear and rebut the allegations. If a petitioner does not seek renewal of the RO, it will expire without any further need of action by either party; however the record of the RO may remain against the defendant as a permanent part of a criminal record.

talk to the hand

 

Many times, the complainant/Plaintiff wishes to recant or dismiss the RO they sought and obtained from the District Court. This can be complicated where the District Attorney has begun a case due to the alleged criminal conduct of the defendant.  If, for example, the allegations include physical assault, or the brandishing of a weapon or abuse of a minor child, the case is going to be treated as a criminal matter and prosecution for the charges will ensue.  Once the state treats it like a criminal matter, it will be up to the prosecutor (the District Attorney and his Assistants) to determine whether they will dismiss the charges and discontinue prosecution as a criminal matter.  Sometimes, if the petitioner-now witness/complainant for the State refuses to testify and/or recants the allegations, and there is no other evidence but the testimony of the victim, the State will have no option but to dismiss the charges (since they will be unable to meet its burden of proof).  However, more and more the DA will not rely exclusively on the testimony of the victim and will use extrinsic evidence such as 911 call tapes, medical records, police reports, EMS records and other evidence of abuse or criminal conduct to prosecute the case.  So recantation is not a guarantee that the charges will be dismissed or that the RO will be lifted.

If the RO has been incorporated into a concurrent proceeding such as a divorce in the Probate & Family Court or criminal trial in the Superior Court, an application by motion has to be made in those courts for a vacatur of the RO.  That is a much more complicated application and counsel should be retained to pursue this.

Vacating a Restraining Order is a very difficult thing to do —for both the defendant and the accusing party.  I advise clients to consider the consequences of applying for a legal restraint BEFORE FILINGS.

NEVER FILE A FALSE REPORT OR FILE FOR AN ABUSE PREVENTION ORDER IF THE ALLEGATIONS ARE UNTRUE.

False allegations can become permanent records against the defendant, notwithstanding the falsity of the claim; and recanted allegation do not mitigate the harm done.  Restraining Orders can affect parental rights, custody and visitation, and even distribution of marital assets.  Further, for every victim who recants or refuses to cooperate in the prosecution of criminal charges, dozens of unreported abusers kill women victims of domestic violence every year. A false or recanted report of abuse discourages the police and legal system from taking abuse reporting seriously.  Abusing the process for retaliation or any other reason is a crime.  Recanters can be prosecuted for perjury,  defendant can me “marked” for life.  Police response to domestic violence situation is affected by the false reporting or recanting of allegations.

As always, I must advise that a person considering filing an abuse prevention order consult with counsel about the appropriate remedy.  Having said that, if you are under threat or fear of harm, you should not hesitate to seek a restraining order. If you are a defendant and feel a false charge has been filed against you, please do yourself a favor and consult with counsel before proceeding to attempt to remove or vacate the RO.

This information is based on Massachusetts law.  If you reside in another state or jurisdiction, you should consult with an attorney in your area for specific regulations affecting your rights and remedies.

http://www.ncdsv.org/images/False%20Allegations_WVCADV_1.15.08.pdf