What is a Restraining Order?

A restraining order in Massachusetts is a civil court order that may be granted to an individual who can establish that s/he has been abused and needs protection from the abuse. For a restraining order to be granted the plaintiff must prove that they need the order for their safety by a preponderance of the evidence (more likely than not, 51%). Only a judge can order a restraining order or change a restraining order. 

The individual seeking protection through a restraining order is the plaintiff. 

The individual defending against the restraining order is the defendant.

What is the Definition of Abuse?

Abuse is the occurrence of any 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 or duress;

●       Coercive control.

What is Coercive Control?

Coercive control has a very broad definition, it can include a pattern of behavior “that causes that family or household member to reasonable fear physical harm or have a reduced sense of physical safety or autonomy” including isolation, deprivation or basic needs, monitoring finances and movements, threatening to harm a child or animal, intentionally damaging property, or publishing sexually explicit images. You can read the entire definition here. We also have a dedicated article about the coercive control update on the law.

What do Restraining Orders do for the Plaintiff?

A judge may order the defendant to: 

●       Stop abusing the plaintiff;

●       Leave the plaintiff’s home, even if they own or pay rent for the home;

●       Not contact the plaintiff and to stay away from the plaintiff, plaintiff’s home, plaintiff’s work, and/or the plaintiff’s children;

●       Pay living expenses if you are married;

●       Pay for expenses the plaintiff has had because of the abuse, such as medical expenses, property damage, or lost wages;

●       Give up any firearms; or

●       Attend a batterer’s treatment program.

In addition to the above, the judge can order the plaintiff to have temporary custody of the children. If the plaintiff is fleeing from abuse, the court can “impound” their address, meaning that the address will not appear on court documents or be available to the defendant from the court.

Filing for a Restraining Order in Massachusetts

You can apply for a restraining order in Massachusetts if you have been abused by:

●       Your husband or wife (or ex-husband or ex-wife);

●       A household member or former household member (including roommates);

●       The other parent of your child;

●       A blood relative or someone related to you by marriage (for example, siblings, parents or in-laws); or

●       Anyone with whom you have had a substantial dating or engagement relationship.

The plaintiff will need to prove that the defendant abused you. You need to show the court that the person physically harmed you or that you have a good reason to believe that the person will harm you in the near future.

Who Issues Restraining Orders?

You can get a restraining order at your local District court, Probate and Family court or Superior court during regular business hours.

You can get a restraining order when the courts are closed, by filing an emergency 24-hour restraining order at your local police station, or you may call the police and file for the order over the telephone. However, if you get this type of order, you will need to go to court the next business day. Deciding which court to go to (usually either District court or the Probate and Family court) depends on the facts of your case.

District court:

The district court can order the plaintiff to have custody of the child(ren) but cannot order visitation between the defendant and his/her children. If there is an existing Probate and Family court order regarding custody or visitation, the district court can only last for several days so that the matter can go back into Probate court. The district court has Victim-Witness Advocates who can assist victims of domestic violence with this process.

Probate and Family court:

The Probate and Family court is the only court that can order visitation between the defendant and his/her children. In cases where visitation will be an immediate issue, you should file for a restraining order in the Probate and Family court.  The Probate and Family court can modify the district court’s restraining order.

The Massachusetts Restraining Order Process

The Restraining Order Process:

To get a restraining order from court, you need to do three things:

1. Fill out a Complaint and Affidavit that describe the abuse;
2. On the same day, go to a hearing to explain to the judge why you need the restraining order; and You will appear before a judge for a hearing. The person who abused you will not be at this hearing, because they do not know that you have filed for a restraining order. The judge may ask you questions about why you want a restraining order. With as much detail as possible, you should describe the most recent abuse event and describe how the person has abused or threatened you in the past. If your child(ren) witnessed the abuse or was abused, it is important for you to tell the judge.
3. Return to the courthouse later for another hearing, often called a 10-day hearing, where the defendant will have a chance to defend themselves.

Preparing for a 209a Restraining Order Return Hearing:

1. The defendant will have notice of this hearing and will have the opportunity to tell the judge their side of the story.
2. If you have witnesses who have witnessed abusive behavior, they should attend this hearing.
3. If you have any documents that show you have been abused, you should bring them to the hearing.
4. Restraining orders that are extended past the temporary review date generally last for one year.

If the court issues a restraining order, the defendant’s name is automatically entered into the Statewide Registry of Civil Restraining Orders. This may affect the defendant later when trying to apply for certain jobs or on background checks. It is very difficult to remove a name from this registry, even if the restraining order is later terminated. In certain cases, the defendant can ask the judge to vacate the order “nunc pro tunc” which means that the order will be dismissed back to the date it was originally issued. This will ONLY be granted if the defendant can prove that the plaintiff committed fraud on the court in obtaining the restraining order. If the judge does vacate the order based on fraud, the defendant’s name should be removed from the registry.

How does the Defendant Defend Against a Restraining Order?

As the Defendant, How do I Defend Against a Restraining Order?

As the defendant, you will be served by the police or by mail. However, you will not be served with a copy of the Complaint application, or the Affidavit, so you should get a copy of both at the courthouse before the hearing. You have the right to appear at the hearing, present evidence, testify and cross-examine witnesses.

If you are served with a restraining order, you should appear at the hearing if you want to contest the order.

In order to issue a restraining order against you, the judge must find that you caused or attempted to cause physical harm OR that you put someone in fear of imminent serious physical harm OR that you caused someone to have sexual relations with you by using force, threat or duress. If none of these standards are met, the judge should not issue a restraining order against you.

What is a Violation of a Restraining Order?

What is a Violation of a Restraining Order?

A violation of a restraining order by the defendant will result in the arrest of the defendant and is a criminal offense. The defendant will be in violation of the order if they do ANYTHING that the order prohibits them from doing.

To report a violation of a restraining order by the defendant, you need to call the police or go to the police station.

If there is a restraining order against you, but the person who filed the order, the plaintiff, repeatedly tries to have contact with you, you may go to the court to ask the judge to vacate the restraining order, but the plaintiff cannot violate the restraining order in the same way as the defendant.