Massachusetts Criminal Defense Attorney Blog
If you have been served with a Restraining Order, or Order of Protection, you should take immediate action to consult with an experienced Massachusetts restraining order defense attorney. A competent abuse and harassment restraining orders attorney can help protect your constitutional rights and get the civil complaint asserted against you dismissed. Unfortunately, several individuals in the Boston area are wrongfully accused of committing acts of violence such as domestic assault or battery against their spouse or significant other. For example, it is not uncommon for an disgruntled spouse to make false statements of domestic violence in order to get a restraining order during divorce proceedings.
If you have been served, I invite you to contact me for a free phone consultation. to speak with me directly. I provide restraining order legal representation to residents of Lawrence, Lowell, Haverhill, Concord, Ayer and Newburyport, Massachusetts.
Read on to learn more about Chapter 209A and Chapter 258E orders.
Abuse and Harassment Restraining Order Attorneys
Overview of Chapter 209A and Chapter 258E Orders
In many respects, the procedures by which a complainant can seek and obtain a Chapter 209A or a Chapter 258E order are similar – although the eligibility and available relief are substantively different.
In appropriate emergency circumstances, the party seeking protection can apply at the courthouse for a temporary order, without notice to the defendant.
The named defendant is then served with notice to appear at a hearing. within about ten business days.
At this second hearing, the complainant has the burden of proving that he or she is entitled to the requested order. “A two-party hearing in a c. 209A matter is like any other contested civil proceeding. The plaintiff presents his or her evidence, the defendant presents his or her evidence, and the court decides if the plaintiff has proven the case by a preponderance of the credible evidence,” according to the “Guidelines for Judicial Practice: Abuse Prevention Proceedings.”
How An Experienced Attorney Can Help
An attorney can and should appear and represent the defendant at any hearings and otherwise assert the defendant’s rights and challenge the adequacy of the complainant’s case and evidence.
- Ensure that the Proceedings are Proper and Constitutional
Defense counsel should make an appropriate challenge if the defendant did not receive timely and proper notice of the plaintiff’s request for a court order and of all hearings (except in the circumstances when an emergency order is properly granted, for a short time, without advance notice). The attorney should also ensure that the proceedings are fair and conducted according to established procedures.
- Make Sure the Complainant Has Asserted and Proved a Valid Case to Support Issuance of the Requested Order
In the case of a request for an order under either Chapter 209A or 258E, the complainant must meet — that is, allege and prove — each and every element and precise requirement specified in these Massachusetts statutes.
For example, under Chapter 209A, the complainant must demonstrate that the defendant is one of a close circle of people – a family or household member, or someone with whom the complainant has had a “substantial dating relationship.” Otherwise, no relief is allowable.
Under Chapter 258E, a complainant is not entitled to a harassment prevention order unless he or she proves there was prior “harassment.” There are three different possible ways to establish “harassment.” In each, there are specific definitions and elements that must be met.
- Challenge the Allowability (or Scope) of the Requested Relief
Each statute specifies what can be included in a court order under Chapters 209A or 258E. These are not open-ended statutes that allow a complainant to ask for an unlimited or poorly defined scope of relief.
A request for an order under either of these Chapters is a civil rather than criminal request for relief. If there is even an unproven allegation that the defendant has violated the order, it can quickly turn into a criminal matter with serious, long-lasting penalties and consequences. So challenging any such allegation at the earlier possible opportunity is crucial.
Contact me at the earliest stages of litigation regarding a restraining or protection order. If you have been charged with violating a restraining or protection order, call me for a free phone consultation to discuss the charge(s) asserted against you in more detail. .
Sources
Chapter 209A of Massachusetts General Laws
Chapter 258E of Massachusetts General Laws
http://www.mass.gov/courts/docs/209a/guidelines-2011.pdf (Guidelines for Judicial Practice: Abuse Prevention Proceedings)
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