Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

HOW TO DEAL WITH A BOSTON RESTRAINING ORDER

It has become an all-too familiar part of domestic relationships. It does not matter if those relationships are romantic, paternal or even simply housemates. For years, domestic violence was ignored by society. Today, it is not only not ignored as a potential protection…it is often used as a sword to use against one’s closely tied enemies.

But that is for another day. Today, Attorney Sam’s Take discusses what one should do upon learning that a restraining order has been issued against you.

The first thing you do is ignore the immediate impulse to call the person who got the restraining order to demand an explanation. You have just received a court order not to have contact with that person. As with most court orders…you disobey it at your peril. Jail-type peril.

Actually, there are two types of restraining order that this could be. One tells you to have no contact with the person who got the restraining order and the other one tells you to not harass that person. My advice? Play it safe. Harassment can often be in the eyes of the beholder! Do not contact the person.

The person who you should contact is a criminal defense attorney to advise you in the situation.

“Why a criminal defense attorney, Sam? I did nothing wrong. Is this a criminal complaint?”

No, not yet. However, these matters are often joined with a criminal complaint. Further, if you violate the restraining order, you will be arrested. Criminal defense attorneys are best suited to handle these matters and we do so on a regular basis.

That being said, the system tends to hide behind the fact that this is not a criminal proceeding, but merely a civil one. This is why you do not get all those Constitutional protections you have heard so much about in criminal cases. This “civil” remedy can force you to lose contact with your children, lose your job and put you in a negative light in any divorce case pending or eventual criminal proceeding. Yes, I mean ANY eventual criminal proceeding…even if it is ten years from now and involving someone other than the complainant in the restraining order matter.

“Holy Cow! How did I even get this thing, anyway?”

The process of getting a restraining order is fairly simple. The complainant goes to the local district court clerk and explains that he/she needs a restraining order because he/she is afraid that someone is likely to do them physical harm, or has already done so. That “someone”, in the case of an actual restraining order pursuant to Chapter 209A, must be someone who is in some kind of domestic relationship with the complainant.

The clerk will either help the complainant or send them to the district attorney’s office to speak with a victim/witness advocate. Usually it is the victim/witness advocate who will help the complainant fill out the paperwork requesting the restraining order. This paperwork is in the form of an affidavit (a sworn written statement). It must allege certain things like that the complainant is afraid of the now-named defendant and the reasons for that fear. Usually it has to be the fact that the defendant has either been violent in the past, or has threatened violence to the complainant.

Believe me, these requirements are generally considered quite broadly.

The complainant presents the affidavit to the sitting judge who reads it. The judge is likely to ask a few questions and then, in most instances, will issue a temporary restraining order. The order then gets served upon the defendant. The matter will be scheduled by the court for an additional hearing in approximately 10 days so that the defendant can show up and argue why the restraining order should not be renewed.

Often, when one is served with the restraining order, one asks the deputy sheriff serving it if he or she should get a lawyer. Enjoying a healthy batch of distaste for criminal defense attorneys because they simply get in the way of justice, one is likely to be told “no”.

Technically, that answer is correct. If the defendant shows up without a lawyer, one is not going to be arrested. In fact, if the defendant does not show up at all, unlike in a pending criminal case, one is not going to get arrested. However, if one does not show up, then that restraining order is indeed going to get renewed (for probably a year). Likewise, showing up to argue against the restraining order without counsel is not showing up giving yourself every possible chance of dissuading the judge.

If there is any rational way to renew that order, the judge is likely to do it. This is, again, because of all those years we did not pay attention to domestic violence. The thinking is that if the order is not renewed and something happens to the complainant, the judge will be criticized. All that is at risk in renewing the order is that defendant is simply going to be inconvenienced. The life-changing examples of that inconvenience was touched upon above.

“Well, what will take place at this second hearing? Will the judge ask me questions?”

Let’s pick up with that question tomorrow.

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