By Melissa Tobin, Esq.
In order to get an abuse prevention order under Massachusetts General Law chapter 209A, the person making the request must satisfy three requirements. They need to live in the geographical area of the court, they must have a certain type of relationship with the abuser, and they must be suffering from abuse.
To satisfy the first requirement, a person must seek an abuse prevention order in a court which serves the county where they live, unless they moved away from their home to avoid abuse. If so, the court located in the county where they once lived can also retain jurisdiction.
The purpose of abuse prevention orders is to protect against domestic violence. Therefore, in order to qualify for an abuse prevention order, the following things must be true or have been true recently between the victim and abuser:
- in a substantial dating relationship
- related by blood
- have a child in common
- be residing together in the same household
For situations where a person is suffering from abuse or harassment and is not in one of these relationships, they may be able to seek relief under Massachusetts General Laws chapter 258E, referred to as a harassment prevention order.
The final requirement is that a person must be suffering from abuse. This is usually the only contested issue. There are three different types of abuse which will qualify a person for an abuse prevention order. To obtain an abuse prevention order a person must show: (1) evidence of physical harm or attempted physical harm, (2) reasonable fear of imminent serious bodily harm, or (3) involuntary sexual relations. If (1) or (3) have been shown, it is not necessary that a court find it is reasonable for a person to still be in fear.
The process for obtaining these orders starts with a person filing an application in court. To do this, they can go to court during business hours, go to the clerk’s office, and ask to fill out the application. Their application will include an affidavit containing the allegations of abuse. That same day, the person seeking the order will go in front of a judge and tell the judge why they need the order. In the majority of cases, the judge will grant a temporary order of up to 10 court business days. These are called ex parte orders and are issued without prior notice to the other party. The court will then send the temporary order and notice of the next hearing date to the alleged abuser.
The next hearing will involve both parties. Each side is given an opportunity to tell the court their side of the story and present evidence. In cases involving no evidence other than testimony from the parties, the judge will need to determine whose story they believe more and decide whether or not the allegations meet the requirements of abuse as discussed above.
If the alleged abuser does not attend the two-party hearing, this will almost certainly result in the abuse prevention order being extended for 1 year. These orders usually contain stay away orders for the plaintiff’s home and work. If the defendant lives with the plaintiff, it will force them out of their home. If the defendant shares children with the plaintiff, the defendant is at risk of being ordered to stay away and not contact the children.
Unfortunately, although these cases involve very serious consequences for both plaintiffs and defendants, there is no right to appointed counsel. This often leads to parties showing up for hearings unprepared for the gravity of the situation. They may feel blindsided by how quickly judges will make determinations on very little evidence that will have a significant impact on their lives.
If you need counsel for a 209A abuse prevention order or 258E harassment prevention order case in Massachusetts, give us a call today at 617-749-2353 for a free consultation with one of our criminal defense attorneys.