Leonardo Angiulo: What you need to know about restraining orders
Monday, August 06, 2012
Chapter 209A of the Massachusetts General Laws is designed to provide protective orders from the court in exactly these types of situations. The various sections of this chapter define the applicable terms and the process by which a person gets a restraining order. These same sections also define what standards the issuing court is to consider and exactly what evidence must be present to justify the issuance of an order of protection.
The first step, of course, is for a person who believes they are suffering from abuse by a family or household member to come forward. Doing so is as simple as contacting your local police department or district court and applying for a restraining order. Choosing between the two depends on when you apply. If it is between the hours of 8:30am and 4:30pm then the court house is open and that is where an applicant can go. If, however, it’s late or the weekend or a person otherwise needs emergency help they should contact the police.
Required Elements of a Restraining Order
No matter where a person goes to start the process, the restraining order application requires certain fundamental elements. The applicant makes an affidavit in support that identifies the target of the restraining order, the nature of the relationship between the parties, as well as what has happened. The reviewing member of the judiciary then determines whether the necessary elements are present in the application and decides whether, or not, to issue an order. The Commonwealth has established a system by which judges make themselves available outside court hours to review these petitions and can be reached by law enforcement on both nights and weekends for this purpose.
The terms of Chapter 209A are designed to legally restrict the interaction between two people. Importantly, the nature of the relationship between those people is central to whether a restraining order can be issued. In order to be considered family these people could be, now or in the past, related by blood or marriage. In order to be a household member, just as you might have guessed, they must reside or have previously resided in the same household. Couples who have a child in common, or have or were in a substantive dating or engagement relationship are also within the scope of Chapter 209A.
The affidavit discussed previously also must include evidence supporting a finding of abuse. Just like every legal analysis, this term is specifically defined by the statute and may not mean what you think it does. A person does not have to wait until they get hurt to file for a restraining order. In this context, abuse is defined broadly. In the affidavit, the applicant can show an attempt to cause or actually causing physical harm to meet the standards. In addition, Massachusetts General Laws c. 209A, sec. 1 deems abuse to be placing another in fear of imminent serious physical harm or causing another to engage involuntarily in sexual relations by force, threat or duress. No matter what the behavior offered in support of the application is the affidavit will be measured against the definitions by the fact finder before any order is issued.
What you may have noticed is that the initial stage of issuing a restraining order is very one sided. What has not been included in this article is how restraining orders are challenged and when a person subject to the restraining order gets their day in court. Of course, whether due process is served over time does not change the fact that there are some people who need emergency restraining orders. The legislature has created this process to make protection available at all hours.
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