Ex Parte 209A Restraining Order
Ex Parte 209A Restraining Order
A plaintiff can seek a temporary c. 209A restraining order without notice to the defendant and without giving the defendant an opportunity to be heard.
Proceeding with a hearing on a c. 209A complaint without prior notice to the defendant and a right to be heard constitutes an exception to fundamental due process. This exception, i.e., the right to proceed "ex parte", is justified only when there is “a substantial likelihood of immediate danger of abuse.” G.L. c. 209A, § 4.
Past abuse alone, without plaintiff’s present fear of imminent physical harm, is insufficient to justify the issuance of an abuse prevention order.
The abuse required for the plaintiff to be put “in fear of imminent serious physical harm” under c. 209A is essentially consistent with the legal definition of assault, i.e., an act placing another in reasonable apprehension that force may be used. In this regard, the court should look to the words and actions of the defendant in light of the attendant circumstances to determine if the apprehension is reasonable. Moreover, the “plaintiff’s apprehension that force may be used must be objectively, rather than subjectively, reasonable.
The common law rules of evidence, e.g., those regarding hearsay, authentication, and best evidence, should be applied with flexibility at the ex parte hearing, subject to considerations of fundamental fairness.
The standard of proof is a preponderance of the evidence. The plaintiff has the burden of proof. Since the plaintiff is unopposed at the ex parte hearing, it is essential that the court be satisfied that the evidence submitted is credible, and sufficient as a matter of law, to justify the issuance of an order. The court should question the plaintiff, if necessary, to make this determination.
The court may enter any order that it deems necessary to protect a plaintiff from further abuse, including, but not limited to, any of the orders expressly authorized by G.L. c. 209A, §3.
The police must serve a copy of the order and a copy of the complaint on the defendant for it to be binding and take effect. Service should be made in hand, unless the court specifies otherwise. The police are required to make a return of service to the court.
Orders entered after an ex parte hearing should have duration of no more than ten court business days. They should be effective through 4 p.m. on the date set for the hearing after notice.
Free Consultation on any Massachusetts 209A Order
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.
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