Massachusetts Criminal Lawyer Blog
In a recent case involving the issuance of a restraining order – S.V. v. R.V. – the Appeals Court affirmed the denial of the plaintiff’s motion to extend an abuse prevention order that was issued pursuant to G.L. c.209A. In its decision, the Appeals Court ruled that the judge properly rejected the plaintiff’s claim “that she had an objectively reasonable fear of imminent serious physical harm from the defendant.”
The background was as follows. “On October 8, 2016, the plaintiff obtained an emergency ex parte 209A order against the defendant [her former husband] based on evidence that he had harassed her and ‘grabbed and pinched [her] arm’ during an argument at their residence.” “[O]n December 28, 2016, … the judge extended the 209A order for one year, until December 29, 2017.” On March 9, 2017, roughly two and a half months into the extension period, “the parties executed a stipulation … that the defendant was permitted to attend [their] children’s activities held in public locations and that such attendance would not violate the 209A order. The same stipulation provided that the parties would not directly or indirectly communicate during those public events. At the hearing on the expiration date of the extension period, “the plaintiff requested an additional extension of the 209A order,” on the grounds “that she remained in fear of the defendant as a result of the original incident and because she continued to see him at their children’s extracurricular activities…. For his part, the defendant testified that he and the plaintiff had been together in public locations ‘virtually every day for the past year’ while coordinating their children’s activities and parenting time. He also stated that the parties often attended the children’s activities at the same time…. [T]he judge denied the request for an extension” and the plaintiff appealed.
In its decision, the Appeals Court stated, “Faced with an extension request in … circumstance[s]” such as those present here, “‘the judge must make a discerning appraisal of the continued need for an abuse prevention order to protect the plaintiff from the impact of the violence already inflicted’ [in the original incident]. Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014)…. Among other things, the judge should consider ‘the defendant’s violations of protective orders, ongoing child custody or other litigation … likely to engender hostility, … the likelihood that the parties will encounter one another in the course of their usual activities …, and significant changes in the circumstances of the parties.’ Iamele [v. Asselin], 444 Mass. [734,] 740 [2005].” Here, stated the Court, “[i]t is indisputable … that circumstances had changed.” Reflecting the parties’ stipulation in March, 2017, the “evidence at the 209A extension hearing established that the parties had been together ‘virtually every day’ for over one year to facilitate shared parenting time, without any allegation that the defendant had violated the 209A order. Considering these changed circumstances and the nature of the underlying physical abuse, we cannot reasonably say that the judge failed to make [the requisite] ‘discerning appraisal….’ Callahan, [supra]. While the judge’s findings did not explain his reasoning in detail, we are confident that he considered the totality of the conditions at the time of the requested extension, viewed in light of the initial 209A order. Accordingly, we discern no abuse of discretion.”
Although restraining orders are civil in nature as opposed to criminal offenses, they nonetheless appear on a person’s board of probation record and, if violated, do constitute a crime. As a result, assessing whether a plaintiff has sufficient evidence to obtain a restraining order against a defendant is extremely important. If you or a loved one is facing the possibility of a restraining order, it is crucial that you have an attorney that is well versed in the law and who will be able to cogently and persuasively argue your case to the court. Attorney Daniel Cappetta is an experienced attorney and skilled attorney who has successfully defended clients who have faced the issuance of a restraining order, and clients who have been criminally charged with violating a restraining order. Put his expertise to work for you and call him for a free consultation today.