Restraining Orders

If you have been served with a restraining order, you must take action immediately to fight that order in court.  Although technically arising out of a civil proceeding, a violation of a restraining order is a criminal offense.  Armed with a restraining order against you, the plaintiff need only say you violated the order to send the police hunting you down.  The police need no proof to lock you up — the plaintiff’s word alone may trigger your arrest.  This is a powerful tool to put in the hands of someone who dislikes you enough to get a restraining order against you.

A restraining order most often starts at an ex parte hearing, which is essentially a secret, one party hearing at which you have no right to be present.  This is the first step down a dangerous path that can easily land you in jail.

How can I protect myself?  First, you must recognize a cardinal truth:  the easiest choice for a judge to make is to grant a restraining order against you, even if the allegations border on frivolous.  Why this bias in favor of the plaintiff?  Stated simply, no judge ever ended up a news headline for protecting too many victims.  For this reason, you should strongly consider retaining our expert team to fight to immediately terminate the order against you.  

Two types of restraining orders.

In Massachusetts, there are two types of restraining orders:  abuse prevention (“209A”) orders and harassment prevention (“258E”) orders.

A 209A abuse prevention order is the most familiar, traditional type of order, which is available to statutorily defined “household members,” including former boyfriends and girlfriends.  To obtain this type of order, the plaintiff must claim one or more acts of attempted bodily harm, threats of imminent bodily harm, or rape.  

In 2010, the legislature created a new mechanism for obtaining restraining orders with the passage of general laws chapter 258E.  The 258E harassment prevention order does not require any relationship between you and the plaintiff.  Instead, the plaintiff needs to show either:

• Three or more acts intended to cause fear, intimidation, abuse or property damage, or
• The commission of certain crimes against the plaintiff, mostly of a sexual nature.  

What happens after the ex parte hearing?

If the judge thinks there is enough there, he will order police to serve you with a temporary order, directing you to appear on a specific date if you want to fight the order.

The temporary order is effective as soon as the judge issues it, even if you were never served.  However, in order to make a violation a prosecutable offense, the Court must obtain proof of service against you.  This is typically accomplished via in-hand service to you, though there are exceptions to this rule.

It is vital that as soon as you learn of the order, you retain competent counsel to act on your behalf.  The longer the order remains in effect, the longer you remain vulnerable to the whims of the plaintiff.  

How do I fight a restraining order?

When the day for the hearing arrives, the clerk will call your case as he or she goes through the morning list.  The judge will swear in all the witnesses, then ask the plaintiff to present their testimony against you.  She will then ask you to present testimony in response.  After hearing from both sides, the judge will either grant the restraining order (in whole or in part) or deny the restraining order.  If the order is granted, it will typically come up for renewal in one year.  

I will reiterate that the first two party-hearing is critical.  If you lose this hearing, you will be at a tremendous disadvantage at all future hearings.  For this reason, it is so important to hire an effective attorney as soon as possible.  

At Erkan & Sullivan, PC we will begin with listening to and understanding your side of the story.  We will then commence an exhaustive investigation into the allegations, the history of the relationship, and the background of the plaintiff.  We will identify and pursue any sources of relevant information.  For example, is there a witness who might call into question the plaintiff’s version of events?  Is there a trail of social media posts that may demonstrate the plaintiff’s bias or motive to fabricate allegations against you?

• Tip: in anticipation of your restraining order hearing, keep a journal of your comings and goings, do your best to have a third party with you at all times, and preserve any relevant texts, emails and social media posts.  Doing so will serve the vital functions of documenting the relationship and protecting against additional false allegations.

When you appear for your restraining order hearing with our team by your side, your chances of a positive outcome increase substantially.  Following our investigation and meticulous preparation, we will cross examine the plaintiff, thereby calling into question the credibility of his or her story.  We will present testimony, exhibits and evidence which will contextualize the relationship and undercut the basis of the plaintiff’s complaint.  We will make a reasoned and passionate argument in your defense.  And by making a forceful showing at this first opportunity, we will create an environment in which the judge can feel confident in ruling in your favor.  If the judge rules against the plaintiff, you are at a powerful advantage.  The experience will help the plaintiff understand that he or she will not be able to unfairly use the system to bully you or place you in harm’s way.

• Tip:  Over the years, I’ve learned that the first thing a judge will want to figure out is: who is the reasonable party here? In other words, which party is even-keeled, and which one is the hot-head?  Judges know that relationships can end in restraining order hearings because of genuine, credible fear of abuse, but also for a variety of less honest motivations.  If the judge senses you are the unreasonable party, you have already lost.  Competent, effective representation will help the judge recognize you as the reasonable part of the equation, thereby increasing your chances for a positive outcome.  

What happens if I’m charged with a restraining order violation?

When police get a call for a restraining order violation, they will treat this as an extremely high priority incident.  Because of the volatile nature of domestic situations, police will aggressively seek you out to place you under arrest.  You may be denied bail and remain in custody until the courthouse is open for business.  

Once you are transported to court, the assistant district attorney will review your case to determine whether he will file a request to have you detained in jail pending trial.  As a former domestic violence prosecutor, I can tell you that ADA’s will err on the side of caution when dealing with restraining order violations.  They fear that if they acquiesce to your release, and harm befalls the victim, they will be held responsible.  As a result, the prosecutor may ask the judge to order you held in jail — without any bail at all — based on the alleged dangerousness of your offense.

The concept of going to jail based only on an unproved allegation is obviously terrifying.  Worse, when judges are forced to make this choice, they too may be prone to err on the side of caution by agreeing with the prosecutor to have you locked up.  As unfair as this sounds, judges have little incentive to risk their livelihood and reputation by releasing an accused domestic abuser.  For this and many other reasons, the most important step you can take to preserve your freedom is to retain a skilled team of lawyers to fight for you.

Our team can dramatically increase your chances of securing your release, allowing you to remain free; cloaked in the presumption of innocence as your case proceeds through court.  Whether it be by negotiating favorable release conditions with the prosecutor, or convincing the court that your release will not endanger the public, our team will work tirelessly to protect your freedom.

If you are facing a restraining order hearing, please don’t delay.  Reach out to our team right away.