Massachusetts Law About Defending Against a c.209A Order
- MGL c. 209A: Abuse Protection
- MGL c. 211A s.10: Concurrent Appellate Jurisdiction; Review in First Instance in Certain Cases
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, 843 NE2d 1101 (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."
Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 766 NE2d 113 (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.
Corrado v. Hedrick, 65 Mass.App.Ct. 477, 841 NE2d 723 (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, 676 NE2d 449 (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, 781 NE2d 780 (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 (c.231 sec.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, 651 NE2d 1206 (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, 681 NE2d 276 (1997) "Considering husband's ongoing incarceration, physical harm feared by wife was not sufficiently proven or imminent to warrant protection order."
Szymkowski v. Szymkowski, 57 Mass.App.Ct. 284, 782 NE2d 1085 (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, 680 NE2d 55 (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, 700 NE2d 296 (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, 672 NE2d 502 (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."
209A Defense Blog, Dmitry Lev. This blog is the best web source we've found for information on defending against or appealing a 209A order. One particularly helpful entry is 10 Most Important Actions when Served with a 209A Order.
Criminal Law: Hot Topics in District Court Practice, by William D. Crowe, Mass. Academy of Trial Attorneys, 2000, sec. 2.
"Frivolous 209A Appeal Could Mean Counsel Fees," 29 Massachusetts Lawyers Weekly 1405 (Feb. 26, 2001).
Massachusetts Jury Instructions: Civil, by John M. Greaney, et al., Lexis, loose-leaf, chapter 16.
Massachusetts Practice, vol. 3 (Family Law and Practice), 3d ed., Thomson West, 2002 with supplement, sec. 58:13 and sec. 58:16.
M.G.L. 209A and Its Impact on Divorce and Civil Practice, by Richard C. Biller, et al., Mass. Bar Institute, 2000, ch. 2.
Obtaining, Enforcing and Defending c.209A Restraining Orders in Massachusetts, Andrea J. Cabral, editor, MCLE, loose-leaf, sec. 4.3 and sec. 4.6.
"A Question of Intent: The Massachusetts Abuse Protection Order and the Innocent Doer of Harm, 6 Suffolk Journal of Trial and Appellate Advocacy 79 (2001)