Domestic Restraining Orders (209A)
A domestic restraining order (commonly called a 209A order in Massachusetts) is a court order to stay away from another person; to avoid contact with that person, and to comply with other conditions. The court can even order a parent not to contact his or her own children, and assign custody to the other parent. Most of the time, an initial restraining order is issued “ex parte,” or without your presence. This means that usually, you can’t even defend yourself against a temporary (10 day) order.
Violating a 209A order carries a penalty of up to two and one-half years in the county house of corrections, and a fine of up to $5,000. 209A orders are designed to provide a powerful reason to stay away from another person – if you violate the order, you face criminal conviction and jail.
The basic concept behind a restraining order appears, on the surface, to be sound. The problem is applying the concept to the real world. Let’s say your wife has a restraining order against you that prevents you from contacting her or your two children. If you drive past her house, you are violating your 209A order, even if you don’t see her. If you go to a crowded restaurant or theater and see your wife, you have to leave. Avoiding conversation or eye contact with her is not enough – you must leave immediately. You can’t call her to offer money or Christmas presents without violating the law, no matter how good your intentions are.
As you can imagine, it is very easy to accuse a person of violating a 209A order. How can you prove you did not drive past her house, or call her on the phone? Petty accusations like these take up immense amounts of judicial time and resources.
Judges grant 209A orders to almost anyone who requests one. Again, it’s fear of the “one-in-a-million” case that we discussed under Domestic Assault – what if the Judge failed to grant a 209A, and the person requesting the order was found murdered? Obviously, a piece of paper is not going to stop a crazy person from hurting someone if he has set his mind to it, but it sure is easy to blame the Court if such a tragedy happens. For the Judge, it’s not worth the risk, no matter how small.
Having a 209A puts the complaining witness in a position of great power over the defendant, a fact that the courts are just beginning to recognize. Attorney Gindes has been successful in defending such orders, either by having the court deny the order, or limiting the order in such a way as to make violations much more difficult to allege and prove.
You should never agree to the entry of a 209A order against you without counsel. These orders stay on your record for life.
Attorney Gindes has fought these orders and won. Sometimes judges have refused to grant orders. More often, Attorney Gindes can convince the Judge to limit the scope and reach of an order, making it harder for the person who holds the order to make a false accusation.
Call us if someone has taken out a temporary order against you, or threatens to do so. Having a lawyer won’t necessarily stop the Court from issuing an order, but Attorney Gindes has on occasion convinced the person seeking the order to change his or her mind, or at least to limit the scope of the order so that violations are harder to prove. Sometimes Judges even deny or limit an application for an order, if compelling reasons can be presented to the Court. A consultation is free, and Attorney Gindes will honestly tell you if he can help.
Allegations? Remove restraining orders