The Abuse Protection statute in Massachusetts  M.G.L. c. 209A , often referred to as a restraining order, includes provision relating to out of state orders.   Under section 5A , "any protection order issued by another jurisdiction, as defined in section one, shall be given full faith and credit throughout the commonwealth and enforced as if it were issued in the commonwealth for as long as the order is in effect in the issuing jurisdiction." In a recent case, a Defendant raised on appeal the question of whose law applies when an out-of-state order is violated in Massachusetts: the law of the issuing state, or the law of the state where the order was violated? In Commonwealth v. Shea SJC-11412 (2014) , the defendant who lived in Weymouth applied for a restraining order in the Quincy District Court against the victim who already had a restraining order against the defendant in NH.  This forced the victim to attend the hearing in Quincy District Court where, after hav...

The Abuse Protection statute in Massachusetts M.G.L. c. 209A , often referred to as a restraining order, does not apply to all relationships.  You cannot obtain a restraining order protecting you from anybody.  The statute limits the protections to individuals suffering from abuse by "family or household members" which is defined in the statute as follows: “Family or household members”, persons who: (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, which shall be adjudged by district, probate or Boston municipal courts consideration of the following factors: (1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationsh...

In a recent Supreme Court decision,  Moreno vs. Naranjo , SJC-11070 (2013)  , the SJC dismissed an appeal as moot for a 209A order that had expired, but addressed the underlying issue anyway in order to provide guidance to District Court judges.  In  Moreno  the District Court judge had considered the impact of the order on visitation and had ordered a 6 month order instead of 1 year because of the likely impact of the order on the relationship between the defendant and the child.  The SJC indicated that this consideration was improper. In deciding the length of an order, the only consideration should be the "time reasonably necessary to protect from abuse the plaintiff or any child in the plaintiff's care or custody."   This doesn't mean that an order can't include provisions for visitation, but only that the impact the order has on visitation shouldn't affect the choice to issue the order or for how long.  That choice is dependent solely on ...

UPDATE:  The changes proposed in this post were adopted on June 25, 2013 and became effective August 1, 2013. Massachusetts Supplemental Probate and Family Court Rule 412 currently allows for the filing of a Joint Petition for Modification of Child Support when two parents agree that the child support figure should be amended.  Often when there has been a material change in circumstances , two parents can agree that the child support should change to reflect the new circumstances.  If the new agreement can be reduced to a writing, then it can be submitted to the court with a Joint Petition under Rule 412, and the court may approve it without requiring a hearing (although the court may schedule a hearing if they have questions about the agreement). The obvious benefit to this joint petition process is avoiding the cost and stress of unnecessary trips to court when an agreement is reached between the parties.  When parties can't agree on whether chi...

In 1994, the United States Congress enacted the Violence Against Women Act, which was the first U.S. federal legislation criminalizing domestic violence and sexual assault, and assigned federal resources to combat violence against women on a community level.  It was reauthorized in 2000, and again in 2005 ( read the text of the 2005 version ).  The 2005 version which recently expired, also addressed dating violence and stalking, expanded services to include children and teenagers, and established funding for rape crisis centers. Since this legislation was recently allowed to expire by Congress, it's important that you know what we are losing and why it was allowed to expire.  If after reading about the benefits of this Act and the reasoning for letting it expire you think Congress made a mistake by not renewing the Violence Against Women Act, then we encourage you to contact your representatives and tell them your opinion. The Violence Against Women Act -...

In May, 2009 Norfolk County instituted a pilot program allowing 209A Restraining Order cases opened in a District Court in Norfolk County to be transferred to the Norfolk Probate and Family Court, if there is already an action pending in that Court.   We described the program in a post entitled:   One Court instead of Two for Domestic Abuse Cases in Norfolk County – A Pilot Program . That pilot program ended 12 months later and was not renewed, which means that the courts do not currently allow the transfer of a 209A Restraining Order case from district court to the probate and family court.  This raises the question: What happens if there is a 209A Restraining Order in a district court and a Divorce case between the same parties in the Probate and Family Court? If there are no children in the case, the Probate and Family Court is unlikely to concern themselves with the Restraining Order case because the divorce is primarily dealing with financial issues which don...

In our last post we provided information on the three types of orders that can help protect someone from an abusive spouse. In two scenarios these orders can be permanent: An abuse prevention order under M.G.L. c. 209A , often referred to as a 209A or restraining order, can be ordered for any fixed period of time up to one year. If an ex-parte hearing (without the defendant) was held for the initial hearing, then another hearing will be set up within ten (10) days to give the defendant an opportunity to tell their side of the story. After that opportunity, the order can be extended for up to one year. At the extension hearing if the plaintiff appears, the court may extend the order for any additional time reasonably necessary to protect the plaintiff. This extension can be permanent if the circumstances warrant that decision. In addition, pursuant to a divorce case under M.G.L. c. 208, § 18 , the Probate & Family Court can order a husband or wife to refrain from placing any r...

In Massachusetts, there are three statutes which can provide protection from an abusive spouse. As a preliminary warning, none of these statutes, nor any other piece of paper, can physically prevent someone from harming you. These laws only provide for extra penalties and orders to discourage such behavior. If you are in fear of being harmed, and don't think that anything will stop your abuser then you should call a Domestic Violence Program for help. Despite the limitations of these orders, they can still be useful tools in discouraging, preventing and punishing abusive behavior. The three statutes that can be used by victims of abuse to obtain protection from an abusive spouse are: 1. M.G.L. c. 208, § 34B - Order to Vacate Marital Home Authority: The Probate & Family Court may order a husband or wife to vacate the marital home as part of a divorce or separate support proceeding. Standard: The Court may order the offending spouse to vacate "if the cour...

In tonight's episode of Community ("The Psychology of Letting Go" on NBC) one character treats his Restraining order like a force field. By moving towards the defendant, he forces the defendant of the restraining order to move away so that the defendant can stay at least 25 feet away. In reality, restraining orders are not force fields. Although, a plaintiff cannot technically violate their own restraining order, a Judge will likely vacate the restraining order if they find out that the plaintiff has been contacting or approaching the defendant. That type of behavior demonstrates that the plaintiff is not in fear of the defendant. In Massachusetts, M.G.L. ch. 209A provides that a plaintiff can obtain an abuse prevention order (commonly referred to as a restraining order) if there is attempted or actual physical harm or "placing another in fear of imminent serious physical harm." If a plaintiff is able to approach or contact the defendant then that is strong...

The Kramden's and Litigation: Ralph is a bus driver and Alice is currently unemployed but has worked as secretary at times when Ralph has been laid off. They have no children and Alice is primarily responsible for the management of the finances. Ralph often gets involved in ridiculous schemes that Alice claims have wasted their money. Ralph and Alice often insult each other, and Ralph makes constant threats such as "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!." Recently Ralph was caught using his cell phone while driving and lost his job as a bus driver. When he came home and told Alice she berated him for his stupidity and Ralph became extremely angry. He got right in Alice's face and said, as he so often has, "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!." Alice replies "I'd like to see you try" and in response Ralph steps closer to her and p...

President Obama on September 30, 2009 proclaimed October, National Domestic Violence Awareness Month. As with any issue that endangers the health, safety or welfare of individuals, the first step towards ending that danger is to raise Awareness. It seems that we are bombarded everyday with walkathons, and fund raisers, and pharmaceutical commercials that want to raise our Cancer Awareness, our Heart Disease Awareness, even our Awareness of Erectile Dysfunction. It becomes easy to forget that there are dangers in this world, and even in our own backyard, that don't stem from viruses or diseases. There are dangers, such as Domestic Violence that aren't caused by hunger or a germ, but instead by poor choices and a failure of support. It's hard to know if there will ever be a cure for cancer, but we know the cure for Domestic Violence. A safe home and access to justice can provide victims of Domestic Violence with a voice to end their suffering. If you or someone you know ...

If you are served with a Complaint for Protection from Abuse (sometimes referred to as a 209A Restraining Order because of the statute: M.G.L. c. 209A ) then your name and the Complaint are recorded in the Domestic Violence Record Keeping System which is visible to Judges and law enforcement officials (and certain airport personnel) through CARI (Court Activity Record Information), a subset of CORI (Criminal Offender Record Information). There is presently no statutory provision in Massachusetts allowing these records to be expunged. This is explained in greater detail in a Massachusetts Bar Association article which indicates that the Mass Bar proposed an amendment to the statute, mandating expungement of the record when the Order was vacated at the first hearing (after being issued on an ex parte hearing, which most 209A Orders are initially). Unfortunately, this legislation was not enacted by the legislature, and today the law remains that there is no statute allowing these recor...

In Massachusetts, M.G.L. c. 209A allows the court to create orders that protect people from abuse. These orders, known as “Restraining Orders”, “Abuse Prevention Orders” or “209A Restraining Orders” prohibit the defendant not to abuse or contact and to stay away from the person who has obtained the order, and, if applicable, the person’s minor children. 209A Restraining orders may be obtained against a current or former spouse, a current or former household member, the other parent of a child, a relative by blood or marriage, or anyone with whom the person has had a substantial dating relationship. If the parties do not have one of the relationships described above, the court will not issue a 209A Restraining Order. Obtaining a 209A Restraining Order is a civil proceeding, rather than a criminal proceeding. That means that the person seeking the order must prove by a preponderance of the evidence that they have a "reasonable fear of imminent serious physical harm". Put ...

Beginning May 4, 2009, Norfolk County will start a pilot program involving the interdepartmental transfer of certain abuse prevention proceedings. In plain English this means that 209A Restraining Order cases opened in a District Court in Norfolk County may be transferred to the Norfolk Probate and Family Court, if there is already an action pending in that Court. EXAMPLE: Whitney and Bobby are married and live in Dedham. One night they get into a fight and Whitney calls the police. Bobby is not arrested but is escorted from the home by the police and Whitney is provided with an emergency 209A Order for Protection from Abuse (commonly called a Restraining Order). The Restraining Order requires that both Whitney and Bobby show up at the Dedham District Court the next day to go in front of a Judge who will decide whether the Restraining Order should be extended. After a hearing the Judge extends the Restraining Order for two months ( “a cooling off period”). That afternoon, Whit...