Massachusetts law about defending against a c.209A Order

A compilation of laws, cases, and web sources on defending against a c.209A domestic violence restraining order.

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Abusive prevention orders for defendants
Find out what happens if someone files an abusive prevention order against you. Links to information about what an abuse prevention order does, what happens if you violate an abuse prevention order, and what you can do to change, end, or appeal an abuse prevention order.

Massachusetts laws

MGL c. 209A Abuse prevention

MGL c. 211A, § 10 Appellate jurisdiction

Selected case law

Banna v. Banna, 78 Mass. App. Ct. 34 (2010)
"To extend an abuse prevention order, the plaintiff must 'make a showing similar to that of a plaintiff seeking an initial order'... No presumption arises from the fact that a prior order has issued ; it is a plaintiff's burden to establish that the facts that exist at the time extension of the order is sought justify relief."

Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725 (2006)
In distinguishing this case from Vaccaro, court held that "a judge has the inherent authority to expunge a record of a 209A order from the Statewide domestic violence registry system in the rare and limited circumstance that the judge has found through clear and convincing evidence that the order was obtained through fraud on the court."

Comm. v. Dufresne , 489 Mass. 195 (2022)
“Defendant was not denied the right to counsel because while his right to counsel required that he be represented at trial for his violation of the abuse prevention order, it did not require that he be represented at the proceedings that led to the abuse prevention order being issued originally.”

Comm. v. Raymond, 54 Mass. App. Ct. 488 (2002)
Court held that a defendant cannot be convicted of violating a "no contact" provision under a 209A order where the violation is unknowing, accidental, or inadvertent.

Cordelia C. v. Steven S., 95 Mass. App. Ct. 635 (2019)
Standard of proof for modification. Clarifies that the standard of proof required to modify an existing order "depends upon the status of the existing order, the nature of the modification sought, and, in some cases, whether the plaintiff or the defendant seeks the modification."

Corrado v. Hedrick, 65 Mass. App. Ct. 477 (2006)
"When, at a contested hearing, a plaintiff fails to prove that "abuse" has occurred, a judge may not continue an ex parte order that directs the defendant to vacate and remain away from the household because of subjective concerns that violence may occur if both remain in the same household."

E.H.S. v. K.E.S., 424 Mass. 1011 (1997)
"In challenging domestic abuse order, pro se petitioner was not excused from requirement of raising and preserving his claims in trial court and presenting adequate record on appeal."

Fabre v. Walton, 436 Mass.517 (2002)
Walton had obtained and then extended a 209A restraining order against Fabre. Fabre sued, alleging that Walton had obtained the order to harass him, and had not been abused. Walton moved to dismiss the suit. Invoking the Anti-SLAPP statute (MGL c.231, § 59H), the SJC ruled that Fabre's lawsuit would not be allowed to go forward without a "substantial basis" that the domestic violence claim was "devoid of any reasonable factual support," and that since the order had been extended, the claim must have had some factual support. Clarifying a procedural issue, the court also decided that defendants in such suits have a right to bring an interlocutory appeal to the Appeals Court, "regardless of the court in which the SLAPP suit was brought."

Frizado v. Frizado, 420 Mass. 592 (1995)
Although the court in Zullo v. Goguen changed the appropriate method of appeal (see below), this case is still helpful for its discussion of the constitutionality of 209A proceedings and the process that should be followed in a 209A hearing

Jordan v. Clerk of the Westfield Division of the District Court Department, 425 Mass. 1016 (1997)
"Considering husband's ongoing incarceration, physical harm feared by wife was not sufficiently proven or imminent to warrant protection order."

MacDonald v. Caruso, 467 Mass. 382 (2014)
To terminate an abuse protection order, "the significant change in circumstances must involve more than the mere passage of time, because a judge who issues a permanent order knows that time will pass. Compliance by the defendant with the order is also not sufficient alone to constitute a significant change in circumstances, because a judge who issues a permanent order is entitled to expect that the defendant will comply with the order."

Nelson N. v. Patsy P., 98 Mass. App. Ct. 78 (2020) 
Mutual orders require written findings of fact, and an order should not issue on the theory that it will do no harm, i.e., seems to be a good idea or because it will not cause the defendant any real inconvenience.

Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284 (2003)
A father appealed from a child protection order under ch. 209A. The Appeals Court held that there were "distinct overtones of the use of c. 209A as a weapon in circumstances of reciprocal hostility between divorced parents." While the father's conduct was unacceptable, "c. 209A is not designed as a prod toward better parenting. Rather, the statute, as we have said, aims to prevent physical harm." There are other, more appropriate remedies for poor parenting, and the order was vacated.

Vaccaro v. Vaccaro, 425 Mass. 153 (1997)
Even though a 209A order against him was vacated, a husband could not have record of the order expunged from the domestic abuse registry.

Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998)
"Expiration of abuse prevention orders issued against former husband did not render his appeal moot, where entries of the orders were made in the Commonwealth's criminal records system, former husband could be adversely affected by them, and former husband had interest in removing stigma from his name and record by establishing that orders were not lawfully issued."

Zullo v. Goguen, 423 Mass. 679 (1996)
"Henceforth review of orders pursuant to G.L. c.209A should not be initiated by petition under G.L. c.211 sec. 3, but rather by the filing of an appeal in the Appeals Court."

Web sources

Guidelines for judicial practice: abuse prevention proceedings, Administrative Office of the Trial Court, revised October 2021. 

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 certified batterer’s intervention program?, Mass Legal Help (2019).
Describes Massachusetts Health and Human Service’s Intimate Partner Abuse Education Programs (a list of the certified IPAEP Programs is available) for people who abuse their intimate partners. 

Print sources

“Any liar can get an order by merely asserting fear”:  Why Chapter 209A must be revamped to protect against the issuance of unnecessary abuse protection orders. Brittany Pierce, 47 New Eng. L. Rev. 427 (No. 2, Winter 2012).

Massachusetts Practice:

Obtaining, enforcing and defending c.209A restraining orders in Massachusetts, 3rd ed., MCLE, loose-leaf, Sections 2.10, 4.3, 4.6, 5.4.2.

Obtaining or fighting a restraining order, MCLE, 2021.


Last updated: October 14, 2022

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