A restraining order under M.G.L. 209A is a civil order issued by the court that prohibits a person from being within a set proximity or making contact with the person who filed the restraining order. A harassment prevention order under M.G.L. 258E also provides these same protections from harassment and abuse. This following is a list of a few tips that will help prepare you for what you can expect when you are at these types of hearings.
- Be Able to Clearly Identify an Imminent Threat of Harm
When you request a restraining order, you are asking the judge to restrict another person’s freedom, which is not something the court takes lightly. Remember that the law does give the judge the authority to restrict someone’s freedom only when there is violence or harm, or the imminent threat of violence or harm. The law does not give a judge the authority to restrict someone’s freedom because that person lies, swears, drinks, squanders money, etc. Even if the other person’s bad behavior may be a big part of the abuse, it is not likely to be a basis for a judge to grant a restraining order unless you can show it caused you to be reasonably fearful for your personal safety. Focus on the acts of violence which gave rise to your request for the restraining order you are seeking and the court will be more likely to grant your request.
- Give careful thought to your restraining order statement before you write it down
The sworn statement (also called a supporting affidavit) you write in your application for a restraining order is a summary of your case against your abuser and should be well thought out. It is an official declaration to the court that is made under the pains and penalties of perjury, and should concisely set forth each and every act that caused you fear. The supporting affidavit is a permanent part of the court record, and it is important to remember that it may be brought into any future court proceedings, either to support your case, or to be used against you. If the affidavit is weak or poorly written, it will be easier to attack the request for the restraining order and discredit you. Also keep in mind that if the history of abuse is very lengthy and complex, you do not have to cover every single event that transpired in the supporting affidavit. Like most things, less is more when you are presenting to the court. However, special care should be taken to make sure that critical points do not get left out and the timeline of events is clear. If material issues are left out, or the summary of your allegations veers off into irrelevant matters, you may confuse the court and make it difficult to raise important matters later in the case.
- Track down your witnesses
A temporary restraining order (TRO) is normally issued on an emergency basis with the court relying on the alleged facts contained only in the supporting affidavit. If a TRO is granted, the court will schedule the matter for hearing within 10 days so that the defendant can be present and give his or her side of the story. A restraining order hearing works like any other trial, and the testimony is subject to the rules of evidence. If you have witnesses who can verify your accusations, it adds tremendous credibility to your case. If your witnesses are not willing to testify at the hearing, ask them to write a witness statement for you which you can present at the hearing. Ideally, it should be signed by your witness under the pains and penalties of perjury and notarized. The defendant will likely object to any signed statement, but it is well worth getting if your witness cannot appear for the hearing.
- Control your emotions in front of the Judge
Dramatic displays of emotionalism at a restraining order hearing are never a good idea. When your case is called, there will likely be a substantial amount of people in the courtroom present waiting to be heard on other matters. Although the judge will be concentrating on your testimony, you need to be mindful that there might be total strangers listening as well. As nerve wracking as the situation may be for you, avoid telling long, dramatic stories. If you feel like seeing your abuser in court will make you upset, come prepared with a supportive friend or family member. It is also a good idea to bring a few tissues with you so that you are not caught off guard if you feel like you might lament. Resist the urge to panic, and stay calm by taking deep breaths, and focus on the judge and avoid looking at the defendant. Respond directly to the question being asked, and keep your answers clear and concise.
Wright Family Law Group 