RESTRAINING ORDERS IN MASSACHUSETTS Your …

1 1 RESTRAINING ORDERS IN MASSACHUSETTS your rights whether you are a Plaintiff or a Defendant Prepared by the Mental Health Legal Advisors Committee October 2012 What is a RESTRAINING order ? A RESTRAINING order is a court order that may be granted to a person who believes s/he has been abused and wants protection from the abuse. An individual with a mental illness may be the Plaintiff, the person claiming they need protection from abuse, or may be the Defendant, the person having to defend against the RESTRAINING order because of allegations related to their mental illness. This flyer attempts to answer questions for individuals with mental illness in either situation.

2 The Plaintiff can apply for a RESTRAINING order to prevent further abuse if he or she has been physically assaulted, threatened, forced to have sex, or abused in other ways. What can a RESTRAINING order do for the Plaintiff? In a RESTRAINING order , a judge may order that the other person (the Defendant) to: stop abusing you, the Plaintiff; leave your home even if the person owns or pays rent for the home; not contact you and stay away from you, your home, your work, and/or your children; pay child support; pay living expenses if you are married; pay for expenses you have had because of the abuse, such as medical expenses, property damage, or lost wages; give up any firearms; attend a batterer's treatment program.

3 In addition, a judge can order for you, the Plaintiff, to have temporary custody of your children and if you are fleeing from abuse, that your address be "impounded", which means that it will not appear on court documents or be available to the Defendant from the court. Who can apply for a RESTRAINING order ? You can apply for a RESTRAINING order if you have been abused by: your husband or wife (or ex-husband or ex-wife); a household member or former household member (including roommate); the other parent of your child; a blood relative or someone related to you by marriage (for example, siblings, parents, or in-laws); anyone with whom you have had a substantial dating or engagement relationship.

4 You also need to prove that this person abused you. Abuse is defined as: attempting to cause or causing you or your children physical harm; 2 placing you or your children in fear of "imminent" (meaning something that is about to happen) serious physical harm; using force, threat or duress to cause you to have sexual relations. In other words, you need to show the court that the person physically harmed you or that you have good reason to believe that the person will harm you in the near future. Who issues RESTRAINING ORDERS ? You can get a RESTRAINING order at your local District Court, Probate & Family Court, or Superior Court during regular business hours.

5 (Note that as of September 2011 many courts have limited their regular business hours but you can still go to the court until the building is closed for these kinds of emergency ORDERS .) You can also get RESTRAINING ORDERS when the courts are closed. You can file for an emergency 24-hour RESTRAINING order at your local police station, or you may call the police and file for the order over the telephone. However, if you get this kind of order , you need to go to court the next business day. Deciding which court to go to (usually the District Court or the Probate & Family Court) depends on the circumstances of your case. The District Court The District Court can order the petitioner to have custody of the child(ren) but cannot order visitation between the defendant and his/her children.

6 Therefore, if you do not want the court to order visitation, you should go to the District Court. However, if there is an existing Probate & Family Court order regarding custody/visitation, the District Court order can only last for several days so that the matter can get back into Probate Court. The District Court also has staff called Victim-Witness Advocates who can assist victims of domestic violence with this process. The Probate & Family Court The Probate & Family Court is the only type of court that can order visitation between the defendant and his/her children. It may be important to you to decide issues of custody and visitation right away. In these cases, you should file for a RESTRAINING order in the Probate & Family Court.

7 The Probate & Family Court can also modify the District Court's RESTRAINING order . What steps are required to get a RESTRAINING order ? To get a RESTRAINING order at a courthouse, you need to do three things: (1) fill out a Complaint, (2) on that same day, go to a hearing to tell the judge why you want the RESTRAINING order , and (3) go back to the courthouse later for another hearing, often called a 10-day hearing, where the defendant will have a chance to tell his/her side of the story. Application for RESTRAINING order The first step is to go to the courthouse to fill out an application (complaint) for a RESTRAINING order . You should go to the Registry or Clerk s office where someone will show you how to fill out the forms.

8 You must also complete an Affidavit, which describes the abuse. Domestic violence advocates or clerks are usually available to explain what to do. 3 Initial Hearing After filling out the forms, you will go into the courtroom, be sworn in by a clerk, and appear before a judge for a hearing. The person who abused you will not be at this hearing, because s/he does not yet know that you are filing for a RESTRAINING order . The judge may ask you questions about why you want a RESTRAINING order . With as much detail as possible, you should describe the most recent abusive event and also describe how the person has abused you or threatened you in the past. If your children witnessed the abuse or were also abused, it is important for you to tell the judge.

9 10-day Hearing You will have to come back to court later for another hearing, usually called the 10-day hearing. In the meantime, the person who has abused you will get notice of this hearing, called service of process. At this hearing, this person will have an opportunity to tell the judge his/her side of the story. If you have any witnesses who have seen the person's abusive behavior, you should bring them to court with you. If you have any documents that show you have been abused, you should bring them with you to court as well. For example, you might want to bring photographs of your injuries, your medical records, police reports, answering machine tapes with recorded threats, or letters that contain threats or admit the abuse.

10 This evidence will be helpful if the person tries to claim that you are making up the abuse due to mental illness. If you think the abusive person might try to claim that you are not fit to take care of your children, you could bring a letter from your doctor or therapist explaining that your illness does not affect your ability to parent. You may also want to bring a supportive person to court with you to strengthen your testimony, such as your advocate, your therapist, your coworker, or a friend or family member. The court often likes to hear a professional opinion to help make its decision easier. As the Defendant, how do I defend against a RESTRAINING order ? If someone has obtained a temporary RESTRAINING order against you, you are referred to as the Defendant and will be served by the police or by mail.