Articles Posted in Restraining Order

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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. Call 978-975-8060 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

Abuse and Harassment Restraining Order Attorneys

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Like many other states, Massachusetts has enacted legislation to allow people who allege they are, or will be, at risk for domestic violence or harassment to obtain court orders of protection.

There are two distinct types of available orders:

Each has specific purposes, procedures, and proof requirements. These orders are granted in civil rather than criminal proceedings. The case is filed by one person against another instead of by the district attorney.

Massachusetts Harassment Prevention Lawyer

Massachusetts Abuse and Harassment Prevention Orders Lawyer

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The litigation of the issuance and extension of 209A Restraining Orders takes up a considerable amount of time in District Courts throughout Massachusetts. Some judges listen carefully to the facts presented at these hearings. Others are afraid not to issue the order. Case law in this area is constantly evolving making your choice of a lawyer an extremely important decision. This post discusses a recent development in this law and why everyone should hire a lawyer for representation at a 209A restraining order hearings.

Massachusetts Restraining Order Defense

Massachusetts Restraining Order Defense

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Massachusetts Restraining Order Attorney Kathleen M. McCarthy successfully vacates Harassment Prevention Order [258E Order] in the Massachusetts Supreme Judicial Courtt.
The plaintiff and the defendant were former roommates. The defendant moved out of the apartment to a location down the street. The plaintiff claimed that she was in fear of harassment because the defendant drove by his former apartment ]which was down the street] a number of times while she was unpacking her car turned around and drove by her house again. The Newton District Court Judge erroneously held that the plaintiff met the standard for the issuance of a Harassment Prevention Order. Attorney McCarthy appealed the decision of the District Court judge to the Massachusetts Supreme Judicial Court. Attorney McCarthy argued that the conduct of the defendant did NOT meet the threshold for the issuance of a Harassment Prevention Order. The Massachusetts Supreme Judicial Court agreed and held that there was insufficient evidence to issue the restraining order.

Another issue raised in this case was whether a 258 E Harassment Prevention Order becomes moot when the order expires during the pendency of the Appeal. Attorney McCarthy presented convincing arguments that the orders are not moot because the defendant has serious interests to protect that survive even if the order expires. For example, similar to 209A cases, the existence of an order (even if expired) can have an effect on an individual if he or she is ever in court and bail becomes an issue, it can effect employment opportunities and in some cases effect a person’s ability to attend some social activities or volunteer at school. The Supreme Judicial Court agreed with Attorney McCarthy and held that an appeal from a 258E order should not be dismissed as “moot.”

When someone is served with either a Massachusetts 209A Restraining Order or a M.G.L. Chapter 258E Restraining Order one of the first questions that he or she has is whether a lawyer should be retained. The simple answer to this question is YES. The restraining order is a “civil” order however, if a defendant is charged of violating the order he or she can find themselves in the criminal court charged with violation of a restraining order. Although this charge is a misdemeanor, there is a potential for a committed sentence and avoiding the charged in the first place by successfully arguing that the restraining order should not issue is the best defense.

In the event that a District Court Judge issues or extends either a 209A order or a 258E order a Notice Of Appeal should be filed immediately. This issuance and/or extension of the order can be appealed to the Massachusetts Appeals Court and if not successful there eventually the case can be heard by The Massachusetts Supreme Judicial Court. If a defendant wins in the higher court then the case is remanded and the order is vacated. This is a great result. It is important to realize that a Motion To Vacate The Restraining Order should be filed to ensure that the restraining order is vacated and not in any court records.

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The Lawrence Eagle Tribune reports that a Methuen man is being sought by authorities for charges stemming from an incident that allegedly began in Lawrence, MA. According to the Tribune, the thirty year old man reportedly jumped into the minivan of an unsuspecting woman and held a gun to her stomach while threatening her family. The woman was taken to a hotel in Salem New Hampshire where she was allegedly assaulted and beaten until she lost consciousness. After regaining consciousness, the woman called the police and a search expanding over two states has begun to locate the alleged perpetrator. The woman’s stolen van was later located in Andover and she was treated at a hospital for injuries sustained during the incident. According to the Tribune warrants have issued from Salem and the suspect faces charges for kidnapping, attempted second degree murder, kidnapping, threats, violation of a protective order and unauthorized use of a motor vehicle.

Although all of the facts of this case are not known at this time, it appears that he parties may have known one another because on of the charges is violation of a protective order. Assuming that the alleged victim was the complainant on the restraining order then it appears that the pair was known to each other.

In Massachusetts there are two types of Restraining Orders that a complainant can requests. One is referred to as a M.G.L. 209A Restraining Order and the other is a M.G.L. 258E order. In order to qualify for a 209A restraining order the parties must be related, married, roommates or have been in a substantial dating relationship. In order for a judge to issue an order the complainant must demonstrate that the defendant engaged in conduct that created a situation in which he or she was in reasonable apprehension of immediate physical harm. In most circumstances the defendant is not present during the initial issuance of the order and a date (usually within two weeks) is set for another hearing. During this time span the defendant should be served with the temporary order and informed of the new date for the extension hearing. The defendant can fight the extension of the order at this time.

The M.G.L. 258E or “Harassment Prevention Order”is available for parties who are not related, dating, married or have been roommates. Chapter 258E provides the following three definitions of “harassment” warranting relief: (1)”3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, abuse or damage to property”; or (2) a single act that “by force, threat, or duress causes another to involuntarily engage in sexual relations”; or (3) a single act that constitutes one of 12 enumerated crimes involving sexual assault, stalking, or harassment.

It is important to realize that the issuance of this type of order is a civil order however, any violation of the order can result in being charged with the crime of violating a restraining order. Furthermore, although a restraining order is a civil order it can have collateral consequences such as handing over firearm (which could effect employment) and visitation or custody of minor children. If you have been served with either type of restraining order you should contact an experienced attorney immediately.

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The Lawrence Eagle Tribune reports that Haverhill Massachusetts Police Officer Victor Pellot was fired after facing criminal charges for stalking and harassment of his wife and her current boyfriend. According to the Tribune Pellot is appealing the decision to terminate his employment as a Haverhill Police Officer. The decision to fire Pellot followed an internal police investigation. Pellot was arrested by the State Police last February and currently faces charges in the Haverhill District Court for stalking and threats to commit a crime.

This genre of case is often referred to as a case of domestic violence in legal circles. In order for the Commonwealth to secure a conviction for the charge of stalking in Massachusetts it must prove beyond a reasonable doubt that over a period of time the defendant knowingly engaged in at least three incidents aimed at the complainant; that these acts would cause a reasonable person to suffer substantial emotional distress; that the person did become seriously annoyed or alarmed and that the defendant engaged in the complained of actions willfully and maliciously. This criminal charge is similar to the standard that must be met for a Massachusetts District Court judge to issue a M.G.L. ch. 258E Harassment Prevention Order.

It is not uncommon for 209A Restraining Orders to be issued against a defendant in a case of domestic violence. In order for a citizen to qualify for a Massachusetts 209A Restraining Order the parties must be family members, roommates or have been involved in a substantial dating relationship. The complainant must allege acts that would reasonably place a person in fear of immediate physical harm. Contrary to popular belief, it is not necessary that the complainant allege or prove actual physical harm–a threat of physical harm is enough for a district court judge to issue and extend an order.

The 209A order is different from the Harassment Prevention Order [M.G.L. 258E] in that the parties do not have to be related for the Harassment Prevention Order to be issued or extended. The most common ground for a person requesting this type of order is that the defendant engaged in conduct that constitutes stalking [described above].

In the event that a defendant has criminal charges lodge against him or her and is also facing a restraining order extension hearing, it is important to evaluate whether the defendant should testify. Although the restraining order proceedings are civil in nature, any statements made by the defendant can, and likely will be, used against him or her if the criminal case goes to trial. Often times it is prudent not to testify at the civl hearing so that a defendant does not unwittingly help the prosecution prove its case.

In the event that the restraining order is improperly issued and extended the recourse that a defendant has is to file a notice of appeal and the case will be transferred to the Massachusetts Appeals Court. It is important to keep in mind that this process can take about one year. If you are in a position in which it appears that the complaining party will reappear year after year to renew the order taking the case to the Appeals Court may be the only way to attain relief. Furthermore, in the event the Appeals Court or the Massachusetts Supreme Judicial Court holds that the order should not have been issued or extended the order will likely be vacated and will not appear on a background check.

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Maksim Zylyftari, a Roslindale man, was arrested April 29, 2013 for a 209A restraining order violation after the alleged victim invited him to her residence. The order issued from the West Roxbury District Court on April 22, 2013. Police allegedly went to the defendant’s address to confirm that the defendant had been served with the restraining order. When they arrived, the alleged victim, the defendant’s wife, told the officers that the defendant was in the home playing with their daughter. The defendant allegedly admitted to being served with the order but said that his wife called him over to the residence to “try to work things out.” The officers arrested the defendant and advised the victim that she should not contact her husband because of the active order.

This story illustrates a misunderstanding that parties to Massachusetts 209A restraining orders and 258E Harassment Prevention Orders commonly encounter. When there is an active restraining order in effect, contact with the plaintiff is a criminal offense, even if the plaintiff welcomes the contact. After the order issues and while it is active, it is not up to the plaintiff to decide, without court involvement, that he or she no longer wants the order to be effective. Often times, persons get restraining orders on a whim and, shortly thereafter, decide that they want to work things out with their partner. Restraining order defendants should be careful to remember that it is the court’s order, not the plaintiff’s order. If a plaintiff changes his or her mind and no longer wants the restraining order to be effective, then he or she should go to the court and ask that it be vacated. Here, an experienced criminal defense lawyer might be able to convince the prosecution not to go forward with this case, as it is apparent that the alleged victim does not desire it. However, particularly when it comes to cases involving domestic violence, prosecutors can be reluctant to do so.

It is an unfortunate reality that Massachusetts 209A abuse prevention orders are often used by vindictive ex-spouses or partners to bully restraining order defendants. Massachusetts courts tend to issue these orders freely and based on very little proof. Victimized restraining order defendants are then restricted in their daily lives and may even be excluded from involvement in the lives of their children. Restraining orders might have the effects of evicting a defendant from a shared residence, forcing a defendant to forfeit firearms, or temporarily causing a defendant to lose custody of minor children. It is critical to retain an experienced Massachusetts attorney to fight issuance of a 209A abuse prevention order.

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In Massachusetts, someone can apply for a “restraining order” against another person even if the parties are not related, not roommates and have not been in a dating relationship. Massachusetts restraining order Attorney Kathleen M. McCarthy has years of experience fighting for defendants who have been served with civil 209A restraining orders or 258E Harassment Prevention Orders.

Traditionally in Massachusetts, it was necessary for the parties to either be related, living together or involved in a substantial dating relationship to have standing to apply for a civil 209 A restraining order requesting that a judge order one party to stay away or not contact another party. The standard that must be met for a judge to issue a 209A restraining order is that the complainant has a reasonable fear of imminent serious physical harm from the defendant. In Massachusetts, an individual can seek a temporary order in a district court. If the defendant is not readily available a judge often issues the order for a short period of time, one week to ten days, and sets a return date with the expectation that the responding party will be notified of the hearing. This allows a defendant to appear and court and make his or her case why the restraining order should not be extended. Typically the defendant maintains that the plaintiff is not telling the truth and/or that even if what the plaintiff is claiming is true, he or she failed to establish that these actions could reasonably cause the plaintiff to reasonably be in fear of immediate serious physical harm. Massachusetts defense lawyer Kathleen M. McCarthy meticulously prepares for these hearings. Securing the affidavit that the plaintiff filed in support of the order and reviewing all supporting documentation, such as emails, text messages and any other documents to support the clients position is crucial to be prepared to mount a successful defense. A 209A restraining order is a civil order however, any alleged violation can result in a criminal charge against a defendant for violation the restraining order. Additionally, an individual who has a restraining order issued against him or her must surrender all firearms. This fact may effect employment for individuals that are in law enforcement or other professions in which carrying a firearm is part of the job. Clearly, mounting a successful defense and preventing the issuance or continuance of a 2090A order is critical.

Massachusetts General Laws Chapter 258E provides another avenue for plaintiffs to seek a civil restraining order against a defendant. This type of order is often referred to as a “Harassment Prevention Order. The statute provides the following three definitions of “harassment” warranting relief: (1)”3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, abuse or damage to property”; or (2) a single act that “by force, threat, or duress causes another to involuntarily engage in sexual relations”; or (3) a single act that constitutes one of 12 enumerated crimes involving sexual assault, stalking, or harassment. One major difference between this order and a 209A order is that the parties do not have to be related, married, roommates or have been involved in a substantial dating relationship.

The most common provision that the District Courts see is the first section in which the plaintiff must demonstrate, “three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, abuse or damage to property.”

This first branch of harassment has five components. The first requires that there be three or more acts of harassment. The additional requirements are as follows: (1) Each act must be aimed at a specific person; (2) Each act must have been both willful and malicious; (3) Each act must have been done with intent to cause fear, intimidation, abuse or property damage; and (4) Each act must in fact have caused fear, intimidation, abuse or property damage. Defending the issuance or extension of this type of order requires an experienced Harassment Prevention Order attorney to attack each prong of the requirements. The attorney must conduct interviews with the defendant and any potential witnesses and review the appropriate documents.

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According to The Lawrence Eagle Tribune, Dominique Hans from Salem boarded a school bus this past February in an effort to prevent her disabled child from continuing to be hit on the way to school. According to the paper, Hans approached the bus driver in an effort to explain that her child was getting hit by one of the passengers. When the bus driver apparently ignored her, she walked down the aisle and asked the child why she hit her son. It appears that she did not want the boy to sit next to her so she hit him. Hand eventually faced a charge of assault and battery in the Salem District Court.

In Salem District Court both sides offered their version of the events and proposed, what they believed to be, appropriate punishment. The Commonwealth requested that a guilty finding enter and the defendant be placed on eighteen months supervised probation and that she write a letter of apology. The defense proposed that the case be continued without a finding for one year and then dismissed if the defendant successfully completes probation. The defense emphasized the defendant’s impressive law abiding background and explained that the defendant was protecting her child from being hit on the bus. Apparently, the concerned mother and defendant feared that if the hitting continued her son could suffer hearing loss. The judge ultimately sided with the defendant and continued the case without finding the defendant guilty and ordered that she apologize to the passenger on the bus.

In order to prove assault and battery in Massachusetts the Commonwealth has to prove beyond a reasonable doubt that the defendant committed an intentional unconsented to touching on another person. If you or a family member has been charged with assault and battery it is important that you have an experiences Massachusetts defense lawyer on your side. Depending on the circumstances of the case a defense of self-defense, defense of another or a claim that the incident just did not happen can be developed and presented at trial.

Often times a criminal charge of domestic assault and battery often accompanies a request by the complainant for a civil 209A restraining order. If you have been served with a 209A restraining order or would like to seek a 209A restraining order against a relative, spouse, roommate or someone with whom you have been involved in a substantial dating relationship with — it is important that you contact an Massachusetts attorney to make sure that you understand the appropriate standard that has to be met. Although a 209A restraining order is a civil order–it is often recommended that a defense be presented because if the complainant alleges that there is a violation then a criminal charge can issue. The best way to avoid this from happening is to prevent the order from issuing in the first place!

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According to The Lowell Sun, thirty six year ol Shawn Price from Lowell MA is charged with a number of criminal offenses including domestic assault and battery, assault and battery, illegal possession of a firearm, unlawful possession of ammunition, improper storage of a firearm and intimidation of a witness. It was reported that the police were dispatched to a Lowell address where Price’s girlfriend alleged that Price punched her, struck her with a coffee cup and coffee maker in an unprovoked attack. Following a bail hearing in the Lowell District Court Judge Barbara Pearson ordered that the defendant be held on $1,500.00 bail. The defendant pleaded not guilty.

According to reports, when the police responded to the alleged domestic violence, Price’s girlfriend claimed that Price had fled. The girlfriend alleged that while Price was in the bedroom using a cell phone he attacked her by grabbing her around the neck then dragging her by the hair. Price then threw the phone in the toilet so that his girlfriend could not call for help. This conduct must be the basis for the intimidation of a witness charge. The witness was apparently hysterical and had visible bumps and bruises. The witness did not seek medical attention and did not receive a restraining order against her boyfriend.

This type of case is often categorized as a “domestic abuse case.” In many situations, however, not in this case, the witness may apply for and receive a temporary 209A restraining order. Initially a “temporary 209A restraining order” is issued by a District Court Judge. In order for such an order to issue the complaining witness must allege facts indicating that he or she was placed in reasonable apprehension of immediate physical harm by the conduct of the defendant. In most cases, a complainant applies for this in a local district courthouse and fills out an affidavit in support of the restraining order. If it is an “emergency” and the courthouse is closed, often a clerk magistrate will call a judge that is “on call.” If the criteria is met, a temporary order may issue. For the order to have legal impact, it must be served on the defendant or he or she must be made aware of the specific conditions of the order. Following this initial order, a court hearing is scheduled approximately ten days from the issuance of the order. The defendant and the complaining witness are expected to show up. If neither party appears in court the order expires by “operation of law” at four o’clock in the afternoon.

In order to be able to apply for a 209 A restraining order the parties must be related, be roommates or be involved in a substantial dating relationship. However, if this criteria is not met a person may apply for a Harassment Prevention Order pursuant to Chapter 258E. In order to apply for this type of order it is not necessary that the parties be related, be roommates or have been in a substantial dating relationship. However, the standard for for the issuance of this order is different. The most common theory under which this type of order is sought is when a witness alleges that a defendant “harassed” him or her. The type of conduct that constitutes harassment is similar to that required for criminal harassment.
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