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ABUSE PREVENTION ORDERS, HARASSMENT PREVENTION ORDERS,
AND ORDER TO VACATE THE MARITAL HOME
Pursuant to M.G.L. Ch. 209A, abuse
prevention orders may be obtained when an individual is suffering
from abuse or has suffered from abuse. The abuse may be from a family or household member
attempting to cause or causing physical harm, or placing another in
fear of imminent serious physical harm, or causing another to engage
involuntarily in sexual relations by force, threat, or duress.
Family or household members are those
who are or were married to one another, or who are residing together
in the same household, or are or were related by blood or marriage,
or have a child in common, or they are or have been in a substantive
dating relationship.
If there is a substantial likelihood
of immediate danger of abuse, an individual may obtain an ex parte
order, that is an order from the court without notice to the other
party. In order to obtain
such an order, an individual must go to the court and complete the
application for a restraining order, including but not limited to an
Affidavit outlining the abuse that he or she has suffered, the types
of abuse, and when such abuse occurred. After an ex parte hearing, a judge will either issue
the restraining order, and/or deny the order. If the judge enters an abuse
prevention order, the order may be for a limited period of time, to
allow the other party, the Defendant, with notice and opportunity to
be heard in court on the merits of the complaint. The court will likely establish a
return date within a week to ten days, with a copy of the order to be
served on the Defendant by the appropriate police department. The restraining order may provide
a variety of relief, including orders to not contact the Plaintiff,
not abuse the Plaintiff, to remain away from the Plaintiff's
residence and/or to remain away from the Plaintiff's workplace. The order may also award temporary
custody of minor children to the Plaintiff, and order the Defendant
to pay temporary support for the Plaintiff and child(ren). It is likely that the restraining
order will also contain language ordering the Defendant to surrender
any and all firearms, gun licenses, and FID cards in his or her
possession.
An individual may always obtain a
restraining order/abuse prevention order from the courts when the
court is in session. However,
it is important to know that such abuse prevention orders may also be
obtained after hours, on weekends, and on holidays through the police
department. Therefore, if an
individual feels the need for an emergency ex party order during
times when the court is not open, the police department is able to
obtain a restraining order granted by a judge on call. In the event that an individual
obtains a restraining order at night or on the weekend from the on
call or duty judge, it is likely that he or she will be required to
appear in court on the next date that the court is open.
Divorce and separate support matters
are routinely heard in the Probate Court. These matters are often contentious and highly
litigated. Sometimes,
individuals need to have some protection from the other party, but
the facts do not qualify for an abuse prevention order. It may be that a Plaintiff feels
that his or her health, safety, or welfare, as well as the health,
safety, welfare of the minor children are in danger. If that is the case, and there is
a divorce or separate support action pending in the Probate Court, an
individual may request an order that the other party vacate the
marital home. The order to
vacate may also be obtained ex parte, without notice to the other
party, if the court finds, after a hearing, that the Plaintiff would
be endangered or substantially impaired by a failure to enter an
order to vacate. While an
abuse prevention order may be entered for any period of time, such as
a month, three months, six months, or a year, an order to vacate a
marital home may be entered for a maximum of ninety (90) days. It may be renewed after that
period of time. The Defendant
will receive notice of the motion to vacate and will have the
opportunity to contest the continuation of the temporary order. In the event that a Defendant
fails to comply with either the abuse prevention order or the order
to vacate the marital home, such actions may be determined to be a
criminal violation.
M.G.L. Ch. 258E is a recently enacted
statute allowing a complaint to prevent harassment. These orders are available in the
district court, in the juvenile court (if both parties are under the
age of seventeen (17)), and in the Superior Court. An individual who is suffering
harassment, may file a complaint for protection from harassment, and
an affidavit with the court, outlining the harassment that he or she
has experienced. Harassment
is defined as: three or more
acts, each aimed at a specific person, and each act willful and
malicious, done with the intent to cause fear, intimidation, abuse,
or property damage, and that each act did in fact cause fear,
intimidation, abuse, or property damage; or one act that "by
force, threat or duress causes another to involuntarily engage in
sexual relations"; or one act that constitutes criminal
stalking, drugging for sexual intercourse, indecent assault and
battery, or such other acts as listed within the status.
The Harassment Prevention Order
provides relief to those ineligible for a 209A restraining
order. Individuals now are
able to obtain the protection they need by attaining such an order, a
restraining order, or a motion to vacate.
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