GLBT Attorney Program
In addition to the information below, the GLBT Domestic Violence Attorney Program offers legal representation for lesbian, gay, bisexual, and transgender survivors of domestic violence on issues including restraining orders, immigration, family law, housing, employment, and financial issues. Contact 617-779-2130 or paralegal @ gmdvp.org .
Restraining Order Process in Massachusetts
What is a restraining order?
In Massachusetts, the type of restraining order generally sought in domestic violence is also known as a 209A. This type of restraining order covers specific relationships and offers specific protections against future abuse.
Will it give someone a criminal record?
No. A restraining order is a civil order.
It does not hold someone accountable for what they may have done in the past, rather it orders them not to abuse you in the future. Violation of a restraining order is a criminal offense.
What does it cost?
The 209A is free, and you don’t need a lawyer to get one.
Who is covered under 209A?
The restraining order is available against someone with whom you have had a “substantive” dating relationship; a current or former household member; the parent of your minor child; a blood relative; or a current or former spouse. Orders are available regardless of sexual orientation, gender, age, or domestic partnership status.
What types of abuse are covered by a restraining order?
In Massachusetts, in order to get a restraining order against someone, they must have:
- Caused you physical harm,
- Attempted to cause you physical harm,
- Placed you in fear of imminent physical harm,
- Caused you to have sexual relations involuntarily by force, threat, or duress.
This emphasis on physical harm is unfortunate since abusers use a wide range of tactics, and many effectively control their partners without using physical violence. If you are considering getting a restraining order but you haven’t been hit, remember that “physical harm” and “fear of imminent physical harm” can be interpreted in many ways. Perhaps your abuser has withheld essential medication, or has driven in ways that made you afraid you were going to have an accident, etc. Perhaps they’ve said something like, “I’ll never let you go” or, “If I can’t have you no one will.” If you’re afraid of your abuser but are unsure if you’re eligible for a restraining order, it may be helpful to talk with The Network/La Red hotline, a Victim/Witness Advocate at the court or another domestic violence program to help you sort out exactly what has happened that makes you afraid, and whether or not that fits under the law.
How can a restraining order protect me?
Through a restraining order, you can ask a judge to order any or all of the following:
- That the abuser not abuse you from now on (generally known as “refrain from abuse”)
- That the abuser leave the apartment or house if you live together (a “vacate order”). The order holds (at least temporarily) regardless of whether the abuser’s name is on the lease or mortgage. It also covers dormitories and multiple family dwellings, even if, for instance, the abuser’s parents own the house and live upstairs. The abuser can only return with police escort, and that’s only to get their things.
- That the abuser surrender any weapons and/or Firearms ID Card, license to carry, etc.
- That the abuser stay a certain distance away from you.
- That the abuser have no further contact with you, whether directly or through a third party (for example through friends, co-workers, or family members).
- That you get temporary custody of any minor children you have in common. This is likely to pertain only to children with whom you have a legal relationship, i.e., you are their biological or adoptive parent or a legal guardian. If you have no legal relationship to any children involved, consult a lawyer familiar with domestic violence and GLBT family law.
- That the abuser reimburse you for expenses related to the abuse.
- That the abuser pay temporary child support.
- Anything else you need to feel safe, i.e. that the abuser return things like your passport or other id, their keys to house and/or car, garage door opener, etc.
Where can I get a restraining order?
During business hours, you can get an order at any court (district, probate or superior) that covers where you lived when the abuse took place or, if you’ve moved, where you’re living now. Superior courts don’t often handle restraining orders, and are generally not as familiar with the ins and outs of domestic violence or GLBQ/T issues as the other courts might be. A district court, which is your local criminal court, is likely to have domestic violence Victim/Witness Advocates through the District Attorney’s office who can help you with the whole process and can also help should you wish to pursue criminal charges. You can also contact The Network/La Red and we can assist you and may accompany you to court. You should know that any orders out of Probate court (which has jurisdiction over family matters) that have to do with custody, visitation or support automatically take precedence over anything that may have been granted on a restraining order out of District court.
After business hours, on holidays, and on weekends, you can get an emergency restraining order through the police. There must be an immediate reason for an emergency order – it can’t be because you just didn’t make it into court by closing time. It’s likely you’ll have to go to the police station to get the order issued. Once there, the police will contact a judge on call who will listen to your story and then make a decision about whether to issue an order or not. If you get an emergency order, you will have to go to court the next business day in order to get it renewed; if you don’t go, it will be dropped. If you can’t use the local police you can contact the State Police Dept.
What happens when I go to court?
If you would like, you can have an advocate from The Network/La Red or another domestic violence program accompany you.
You go to the Clerk’s desk, and tell them you’d like to get a restraining order. They will give you some forms to fill out. One will be the actual restraining order form, which will ask for your and your abuser’s name and address; you can fill out a separate form to have your address impounded if you don’t want the abuser to know where you are living. There will also be a series of check-off sections to make sure the 209A is appropriate (i.e., type of relationship, type of abuse) and what kinds of protection you want.
On a separate affidavit form, you will be asked to describe the abuse. This is to provide more detail about what’s happened so that the judge can decide whether an order is warranted. While this may be difficult, painful or embarrassing, the theory behind the affidavit goes like this: We are all supposed to have basic rights guaranteed by the Constitution, including the freedom of speech and freedom of association. When a judge issues a restraining order, the court is limiting some of those basic rights, telling the abuser that they don’t have the right to say what they want, go where they want, act how they want. Before the court is comfortable doing that, they want to know that there’s a reason under the law to do so. Under 209A, if the judge has reason to believe that the abuser, in doing/saying what they’ve wanted, has caused someone harm or placed them in fear of harm, that’s justification enough. It’s your affidavit that supplies this information.
After you fill out the forms, the Clerk will type up a form, and you will go to the court to go before a judge. Although it’s not required, most judges will hear restraining orders at “sidebar” – instead of standing in front of a microphone in front of the whole court, you stand at the side of the judge’s bench for greater privacy. The judge will ask you to describe what’s been going on. You can repeat what’s in your affidavit. If you have any documentation, i.e., medical records, police reports, answering machine tapes, letters/notes, emails, your diary, testimony or affidavits from witnesses, etc., you can let the judge know so s/he can see it if s/he wants.
If the judge grants the order, it will be a temporary order, good for approximately 10 days. The judge will give you a date to come back for what’s known as the “10-day hearing.” You’ll go back to the clerk’s office for a final copy of the temporary order. The court will keep a copy, and the police will get 2 copies, one of which they keep and one they will serve the abuser with. The order is not in effect until the abuser is served, so any information you can give them about where/when to find the abuser will be helpful, i.e. when they’re likely to be home, their work address and hours, where they hang out and when, etc.
What happens at the 10-day hearing?
At the 10-day hearing, the judge decides whether to renew the order, which s/he can do for up to a year. The abuser has the right to appear, with or without an attorney, to argue against the restraining order. If the abuser doesn’t appear and you do, the judge will most likely renew the order with all the protections granted in the temporary order. If you don’t show up, the order will automatically be dropped. (If you drop a restraining order, you can still come back another time to get a new one.) If you both show up, the judge will listen to each of you and make a determination about whether to renew the order. Again, if you have any documentation, it will be helpful to bring it to this hearing. Although you don’t need an attorney at the 10-day hearing, we encourage you to consider having one, especially if you have any thought that the abuser will have an attorney. Your attorney should be experienced in domestic violence, and ideally understand similarities and differences in GLBQ/T domestic violence. Many law schools, legal aid offices, and domestic violence programs can provide attorneys or referrals to ones they recommend. You can also have an advocate from The Network/La Red or another domestic violence program accompany you for support, but an advocate can’t cross-examine an abuser, nor can they object to questions your abuser’s attorney might ask.
If an order is granted, you should carry it with you at all times, and make copies for anyone who might need one to maintain your and/or your kids’ safety, i.e. your children’s daycare provider or school, your employer, etc.
What if the judge issues mutual orders?
The 209A law, the Standards for Judicial Conduct, as well as a recent Supreme Judicial Court decision all emphasize that mutual restraining orders are not to be issued except under special circumstances. Because they give the mistaken impression that battering is mutual, and because they can be confusing when it comes to enforcement, if a judge issues a mutual order s/he is supposed to provide “written findings of fact” – to justify in writing the circumstances which warrant a mutual order. S/he is also supposed to provide written instructions so the police know which party to arrest if there is a violation of the orders. If mutual orders are issued, or if the judge doesn’t fulfill the requirements, you can appeal.
What if the abuser violates the order?
Violation of a restraining order is a criminal offense. You can call the police to report a violation. If for some reason they don’t arrest and/or file charges against the abuser, you can file charges yourself by going to the court. It may be helpful to talk with a Victim/Witness Advocate for help through the process.
Many survivors have found it helpful to keep a log if an incident should occur, recording the date, time and what happened and also the date/time and who the violation was reported to. It would probably be helpful to keep copies of anything you submit to the police or courts, such as phone records, notes, tapes, pictures, journal, or medical reports. If you receive a voicemail you might want to record it on a tape, because some systems do not save messages after 30 days.
If you go to a public place such as restaurant, grocery store, etc., and the person you have the restraining order out against is there, the person can be asked to leave. This type of incident may or may not be a violation of the restraining order. It may not be a violation if the person did not have any prior knowledge that you would also be at the same public place. If there is reason to believe they had prior knowledge, it could be considered a violation of the restraining order. If they do not abide by the terms of the order once they are aware of your presence, then they are in violation of the order.
A violation of a restraining order is considered contempt of a court order and the possible penalties are:
They could be immediately taken into custody or jail.
They could be charged with a misdemeanor or felony crime and if convicted could be sentenced to serve prison time and/or pay fines.
They could be given a suspended sentence and ordered to attend batterer’s intervention program such as Emerge.
Can I violate my own restraining order?
No, not technically. The order is not against you. Even if you decide to have contact with the person, they are in violation of the order if they have contact with you. However if they were to become abusive the police might be less likely to enforce the order under those circumstances. If you decide to get back together with the person the order is against you can either call the court and drop the order or go back to court and amend the order for instance, to change from no contact to refrain from abuse.
If you drop the restraining order against the person and they are still abusive you can go back to court and request another restraining order. Some people feel embarrassed or afraid to go back to court after dropping a restraining order. But there is nothing wrong with getting another restraining order. You deserve to be safe and if you need a restraining order for protection you deserve to get it. It’s the abuser who should feel embarrassed at continuing to abuse.