On January 12, 2007 a college student applied ex parte for and obtained a restraining order pursuant to G.L. c. 209A. Her supporting affidavit stated that earlier that day the defendant, also a college student verbally harrassed her, calling her names and using profanities. Her affidavit further stated that the two had dated for two and one half years and broken up on two occasions. The complainant had not seen the defendant in over 5 months. He had however been contacting her electronically.
The judge scheduled a date for the defendant to be heard and to defend against the allegations. At the time the defendant was represented by an excellent well respected Boston lawyer. Through cross-examination the lawyer clarified that there had been no contact between the parties for 6 months. Significantly, in response to a voicemail the complainant called the defendant herself. Three times he hung up on her endeavoring to avoid any contact. The defendant’s lawyer presented cell phone records to confirm this fact. Nevertheless, the judge extended the restraining order.
The defendant called our office seeking to reverse the order and clear his name. Attorney Neyman appealed the ruling and on July 17, 2008 the Massachusetts Appeals Court reversed the lower court’s order. Slip Opinion July 17, 2008, WL 2756567. It further ordered that all records of the erroneous order be destroyed.
In its opinion the Appeals Court reiterated two salient points. First, even if a restraining order has expired your appeal will not be moot. Future legal proceedings could be adversely impacted by a record showing that a restraining order issued against you in the past. Second, the complainant in this case failed to establish a necessary element of the restraining order statute; specifically that there existed a substantial likelihood of immediate danger of abuse.
All too often Massachusetts judges issue restraining orders that are not supported by adequate facts. Rather than applying the law to the facts of the case the the judges “err on the side of caution” and rubber stamp the requested order. Rarely are these orders appealed. The consequences can be devastating. There is a record showing that a restraining order was issued against you. Any violation of the order can result in the issuance of a criminal complaint. Lawfully possessed firearms must be surrendered. Your liberty can be greatly restricted. The restraining order statute is often abused by persons scorned in a relationship.
There are legal actions available to you if someone is seeking or has obtained a restraining order against you. You can try to vacate the order, have the order modified or appeal the issuance of the order. Our office has handled restraining order cases with great success. Conctact us anytime to discuss your restraining order concerns.
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