Appeal of a 209A Restraining Order
Appeal of 209A Restraining Orders
If a c. 209A order has issued against you, you have the right to appeal that order even though there is no provision in the statute itself for appeal by either party.
The Supreme Judicial Court has ruled that litigants seeking appeals are directed to the Appeals Court as the sole avenue for review of the issuance of an abuse prevention order. A defendant may appeal an order even if the order has expired. Such an appeal is not moot because the order has been entered in the Statewide Registry of Civil Restraining Orders and the defendant could be adversely affected by the record in the event of future applications for an order under G.L. c. 209A or in bail proceedings.
The most common basis for successfully challenging a restraining order on appeal is an insufficient factual basis for the order to have issued. G.L. c. 209A has very specific, strictly enforced definitions of who can request a restraining order and what the plaintiff must prove to establish "abuse". Often, judges are too quick to grant restraining orders simply because there is conflict in a relationship, a defendant has acted inappropriately in some other way, or the court believes that the plaintiff and defendant would be better off apart.
In these cases, where the plaintiff has failed to establish actual, attempted or fear of physical harm (or involuntary sexual relations), the Appeals Court will reverse or "vacate" the order granting the restraining order.
Another related basis for possible expungement of the restraining order is when it can be established that a plaintiff has committed a "fraud upon the court". Typically, this is established when a plaintiff has set in motion a scheme intended to interfere with the court's ability to impartially adjudicate the matter, such as the fabrication of evidence and perjury where that evidence is used as a basis for issuing the order. These motions are difficult to win, as they must be first presented to the judge that initially issued the 209A order, but may be warranted if the defendant can present new evidence to show fraud.
Free Consultation on any Massachusetts 209A Appeal
If you would like to speak about your case and get an expert opinion, please call or text us at any time at 617-723-4163, email at inquiry@equitas.law or use our contact form, above. We will listen to the facts of your case, address your concerns and let you know what your options are.
The initial consultation is free and there is no pressure to hire. If you choose to hire us, we will give you a reasonable fee agreement, including possible payment options.
209A Restraining Order FAQ
No. 209A hearings are open to the public and the application, including the allegations, are public records. A judge can impound certain information about the Plaintiff upon request, such as address and phone numbers.
However, if either the plaintiff or defendant are minors, the records must be withheld from public inspection except by order of the court.
Yes. If the Plaintiff or Defendant is a minor, a parent or guardian should file the petition on behalf of the minor (or appear with the minor), although the court can issue the order without a parent if necessary through appointment of counsel or a guardian ad litem.
In the Probate and Family Court Department, the Massachusetts Rules of Domestic Relations Procedure apply to c. 209A actions. In the District Court and Superior Court departments, the Massachusetts Rules of Civil Procedure may be applied in the court’s discretion and only after a hearing and only upon a showing that such discovery is necessary to provide specific information essential to the adjudication of the case.
At the beginning of the hearing, the judge will ask the plaintiff whether there are any outstanding court orders involving the same parties in the same or a different court. Except in limited circumstances, the court should not order any relief that is inconsistent with any existing order in any other court. The court may, however, issue temporary orders where there is an allegation or threat of serious harm to the children who are the subject of an existing custody or visitation order and the plaintiff is unable to reach the Probate and Family Court.
The answer to this question is very case-specific, depending on the facts of your case and what we decide to do with it.
A vast majority of our restraining order cases are handled on a flat fee basis and all we can tell you is that we are always up front and honest, and will treat you fairly. We're also willing to work with you on payments if we can, as this is not all about the money.
Where you can find us
1583 Beacon Street • Brookline • MA 02446
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