SJC holds that abuse prevention orders do not apply in group home settings

In Silva v. Carmel, the SJC held that an abuse prevention order, more commonly known as a restraining order, does not apply in a group home setting. Looking at the strict elements of the statute, because they were not family members or in an intimate relationship, the protection of the restraining order would not apply. Furthermore a group home does not constitute a household. While I agree with the SJC's legal analysis, I disagree with the decision on policy grounds.

First, the purpose of a 209A restraining order is to protect people and the underlying purpose of the statute is to protect those in need. Second, a group home can form a family unit as many people who live in group homes have resided together for many years. And further the people with disabilities are a vulnerable population and susceptible to abuse. Of note, the individual could have filed an anti-harassment order under Massachusetts Law.

Restraining Orders 101: Part 2

This is part two of Restraining Orders 101 and details the process for seeking a restraining order once it is deemed to be the right course of action.

The Process:

Once you have determined that getting a restraining order is the right step to take, it’s important to understand the process. The first step is to go to the Clerk’s office at your local courthouse and fill out an affidavit requesting the protective order. If it is a holiday, night or weekend, call the police and they will put you in touch with an on-call judge. The next step will be to present your safety concerns to a judge who will decide whether a restraining order is appropriate in your situation. If so, he or she will provide you with a physical copy of the restraining order and the other will be sent to the police. It is important to note that this initial protective order is only TEMPORARY, and will last 10 days. The police will take care of serving the abuser with the restraining order. This means they will go to the abuser’s house and physically tell him or her that an order has been filed. If you are living with your abuser, the police can help you by coming to your house and removing the abuser from the premises.  Before 10 days has elapsed, you will need to attend a hearing which allows the abuser to prevent his or her side of the story. Keep in mind, this part of the process can be very difficult so it’s a good idea to have an advocate or friend accompany you to the hearing. If the permanent restraining order is granted it can last for up to a year; violation of the order is a crime and if that occurs, call the police immediately.

This procedure is quite complicated and we recommend hiring a lawyer to help you through the process. Feel free to contact Attorney Brian McLaughlin to set up an appointment if you are considering a restraining order.

For more information click here.  

Restraining Orders 101: Part 1

This is a two part series about the Restraining Order process in Massachusetts. Part 1 will give information if you are considering requesting a restraining order while Part 2 will detail the process of obtaining the protective order. 

Restraining Orders 101

If you or a loved one is experiencing domestic violence, a restraining order may be a valuable tool to keep you safe. If you are in immediate danger, call the police. Restraining orders, or 209A protective orders, are court orders that prohibit an abuser from coming within a certain distance of you or contacting you over the phone, e-mail, etc. and are thus designed to prevent further abuse. When you file for a restraining order, it is a civil claim. This means that the person you are accusing will not be sent to jail or fined if the restraining order is issued. However, if the abuser violates the terms of the restraining order, it does become a criminal issue, meaning they could face either fines or jail time.

In Massachusetts there are several important things to know when considering a restraining order. First of all, only certain types of relationships are eligible for restraining order coverage. These relationships are:

§  A substantive dating relationship

§  Living together in the same household

§  Engaged or married

§  Have a child together

§  Related by blood or marriage

When you appear before a judge, the judge will only grant the restraining order if the relationship falls into one of the above categories and is therefore covered by law and if he or she believes there is “a substantial likelihood of immediate danger of abuse.” If a restraining order is granted, the abuser will need to surrender all guns and gun licenses to the police. This rule enacted by the Lautenberg Amendment of 1996 affects all people subject to restraining orders including those with who carry guns for their occupations such as police officers or military personnel.