What is a 209A Restraining Order?
A restraining order, also called an abuse prevention order, is a court order issued to protect you from being abused by certain other people. You can get a restraining order to protect you or your child. You must show a court that the person you want a restraining order against has abused either you or your child. It is also required that abuser be related to you in one of the following ways:
- You are currently or used to be married to each other or
- You have lived together or
- You have seriously dated the abuser or
- You have a child together or
- You and the abuser are related by blood or marriage.
What sort of abuse do you need to show in order to get a restraining order for yourself or your child?
You must show that the abuser attempted to cause or did cause physical harm to youl or to your child; OR that the abuser placed you or your child in fear of imminent serious physical harm; or that abuser used force or threats to cause you or your child to engage in involuntary sexual relations. For example, if an abuser hit you or your child, hurt you in front of your child, or threatened to hurt you or your child, you could get a restraining order against the abuser.
Where can you file for a restraining order?
You can file for a restraining order, also called an abuse prevention order, either in the District Court serving the city or town where you live, or in the Probate and Family Court serving the city or town where you live. Restraining orders may be sought in Superior Courts, but District Courts and Probate and Family Court are much more familiar with restraining order cases. (See M.G.L. c. 209A §2)
How do you seek a restraining order when the courts are closed?
If the courts are closed and there is a substantial likelihood of immediate danger of abuse, you can seek a restraining order by going to a police department or other law enforcement agency. If the courts are closed, any judge of a District Court, Probate and Family Court, or Superior Court can grant a restraining order by telephone communication with an officer or employee of an appropriate law enforcement agency. The law enforcement agency records the order and delivers it to the appropriate court on the next day the court is open. You then file the complaint seeking the restraining order at court on the next day that the court is open. If you are seeking a custody order as part of the restraining order, it is important that the judge who is handling the case by telephone knows whether there is already a custody order in effect, and if there is, from which court.
How does a restraining order protect your children from an abusive parent?
A restraining order can protect your minor children from an abusive parent in many ways.
1. If there is no current order relating to custody of the children from the Probate and Family Court, the District Court restraining order can grant you custody of your children. Through awarding custody of your children to you, as opposed to the abusive parent, the children remain in your sole care and you are given the authority to make all decisions relating to the care of your children. (See M.G.L. c. 209A §3(d))
2. A restraining order can prevent the abusive parent from contacting your children. This “no-contact” order can extend to all locations where your children may be. A judge may order that the abusive parent must stay away from your child's home, school, and/or daycare facility, as well as order that the abusive parent make no direct or indirect contact with your children. (See M.G.L. c. 209A §3(b), (h))
3. Third, if you obtain a restraining order in a Probate and Family Court, the court may address the issue of visitation. You can request that the abusive parent only visit with the children at specified times, or in a supervised setting. The Probate and Family Court addresses the issue of visitation in restraining order cases only if your request it, and not if requested by the abusive parent. If the restraining order is requested in a District Court, the court is not permitted to address any visitation issue.
4. Finally, a restraining order, whether issued in the District Court or Probate and Family Court, may contain additional protections to ensure that your children are safe in school or day care. These protections may include an order prohibiting the abusive parent from going to the school, from gaining access to the child's school records, prohibiting the abusive parent from meeting with school personnel, or generally preventing the abusive parent from involving himself or herself in the child's school or education. If you are seeking these additional protections, then if at all possible, seek the restraining order in a Probate and Family Court. These protections should be specifically requested by the person seeking the order. You should show specific reasons why these additional protections are needed.
What are some of the important differences between District Courts and Probate & Family Courts in restraining order cases?
If you seek a restraining order in a District Court, the court is not permitted to address the issue of visitation between the children and the abusive parent. A District Court can make custody and child support orders if there are no current custody or support orders from a Probate and Family Court. Many District Court judges do not consider the issue of child support, even though they are permitted to if there is no child support order from the Probate and Family Court. District Court judges may consider custody issues, but only if there is no current Probate and Family Court custody order. (See M.G.L. c. 209A §3)
If a prior child support or custody order from a Probate and Family Court is in effect, a District Court cannot issue any orders concerning custody or child support. In these cases, a District Court can still issue a restraining order protecting you from an abusive person and may also order the abusive person not to contact you.
If you want visitation considered in the restraining order, or if there are custody or visitation orders issued by a Probate and Family Court and you want the specific issues of custody and/or child support considered in the restraining order, a request for a restraining order must be filed in a Probate and Family Court. (See M.G.L. c. 209A §3)
It is always a good idea to check with local domestic violence services providers (such as shelters), legal services organizations, or private attorneys in the area, as local practices of District Courts and Probate and Family Courts may differ from one court to another.
What forms do you need to fill out in order to get a restraining order?
The forms that you need to fill out are:
- Complaint for Protection from Abuse and attached Affidavit
- Confidential Information form
- Defendant Information form
- Affidavit Disclosing Care and Custody Proceedings
These forms are available in the office of the court clerk.
How do you fill out the restraining order forms so that your children will have some of these protections?
The Complaint for Protection from Abuse and the Affidavit are the main forms which tell the judge why a restraining order is needed. Each Complaint has two pages.
The first page asks for information about you (the plaintiff) and about the abusive parent (the defendant). It also asks you to check what sort of safety protections you want the court to order.
The second page of the Complaint requests information about your children and asks which protections you want the court to provide for your children.
Some of the more important points to include on the Complaint are described below:
- If you are asking for any relief from page two of the Complaint (relief on behalf of your children), Box 8 in Section K on page one needs to be checked.
- If you want custody of the children, the box in Section C on page two should be checked and the names and dates of birth of your children should be provided.
- If you do not want the abusive parent contacting your children, the box in Section D on page two should be checked, and the names of your children should be provided.
- If you are in Probate and Family Court and want an order for a specific visitation schedule between your children and the abusive parent, the appropriate boxes in Section E on page two should be checked, and the required information should be provided.
Where on the complaint do you write that the abusive parent should be ordered to stay away from the schools or day care facilities?
The Complaint does not have a specific place to indicate that you want the abusive parent to stay away from the children's school(s) or day care. Therefore, you should insert this information in the following places to make sure the judge knows that this relief is requested:
In Box 5, Section K on page one of the Complaint, there is a place to write down the workplace address that you wish the abusive parent to stay away from. You should also note in that space that you would like the abusive parent to stay away from the children's school(s) or day care and give the appropriate addresses of each place.
On page two of the Complaint, there is space to write why you do not want the abusive parent to have any contact with the children. This is another place where you can indicate that the abusive parent should be ordered to stay away from the children's school(s) and/or daycare.
Since the abusive parent will be served with the restraining order, if he or she currently does not know the exact names and/or locations of the children's school(s) or daycare, it may be wise to just have the judge order that the abusive parent must stay away from those places, without listing the specific school names and addresses.
Where on the form should the protections for your children be requested?
In Box 9 in Section K on page one of the Complaint, you are asked what other protections are needed. If you need additional protections, check the box and, in the space provided, write any specific protections that you need to be included in the order. If you want to prohibit the abusive person from gaining access to your child's school records or from speaking with the school personnel, this is the appropriate place to write that request.
- "The defendant may not come in or near the children's school, the Little Red Schoolhouse."
- "The defendant may not have any access to the child's school records."
- "The defendant may not have contact with personnel of the Little Red Schoolhouse."
What should you write in the affidavit so you can get an order that protects you or your children?
The affidavit form is located on the back of page one of the Complaint. In the affidavit you should write the latest and the worst instances of abuse committed by the abusive person, information about any history of abuse, any specific threats the abusive person has made towards you or your children, and instances that show why you or your children are or have reason to be afraid of the abusive person. If you do not want any contact between the abusive person and your children and do not want him or her having access to their school information, reasons why you want these things and why this is needed to protect the children from harm should also be included.
What should you tell the judge at the court hearing?
The most important thing is to tell the judge exactly what is needed and why it is needed. If you do not ask for the abusive person to be ordered to stay away from the children's school(s), the judge will probably not make that order. You should be very specific with the judge about what protections are needed in the restraining order.
After the judge issues a restraining order which protects your children while they are in school or protects them from having the abusive parent see their school records or contact school personnel, how can you make sure that the order is obeyed?
The best way to make sure the order is obeyed is to provide school administrators and classroom teachers with a copy of the restraining order.
Speak with these school officials about what the order means, what protections the order provides, and what the abusive parent is prohibited from doing.
You may also want to provide a photo of the abusive parent and/or put a note in each child's school file about the possibility of the abusive parent requesting information.
It is important to inform the school(s) that the children are not to be picked up by anyone without prior authorization and that no information about the children should be released without your prior consent.
School personnel should note (from reading the restraining order) that violations of "no abuse," "no contact," and "stay away" provisions of a restraining order are criminal offenses, and that law enforcement officials can be contacted if the order is being disobeyed at a school.