Restraining order case law



Banna v. Banna, 78 Mass. App. Ct. 34 (2010). "To extend an abuse prevention order, the plaintiff must 'make a showing similar to that of a plaintiff seeking an initial order'... No presumption arises from the fact that a prior order has issued ; it is a plaintiff's burden to establish that the facts that exist at the time extension of the order is sought justify relief."


Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 843 NE2d 1101 (2006). In distinguishing this case from Vaccaro, court held that "a judge has the inherent authority to expunge a record of a 209A order from the Statewide domestic violence registry system in the rare and limited circumstance that the judge has found through clear and convincing evidence that the order was obtained through fraud on the court."


Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 766 NE2d 113 (2002). Court held that a defendant cannot be convicted of violating a "no contact" provision under a 209A order where the violation is unknowing, accidental, or inadvertent.


Corrado v. Hedrick, 65 Mass.App.Ct. 477, 841 NE2d 723 (2006). "When, at a contested hearing, a plaintiff fails to prove that "abuse" has occurred, a judge may not continue an ex parte order that directs the defendant to vacate and remain away from the household because of subjective concerns that violence may occur if both remain in the same household."


Fabre v. Walton, 436 Mass.517, 781 NE2d 780 (2002) Walton had obtained and then extended a 209A restraining order against Fabre. Fabre sued, alleging that Walton had obtained the order to harass him, and had not been abused. Walton moved to dismiss the suit. Invoking the Anti-SLAPP statute (c.231 sec.59H), the SJC ruled that Fabre's lawsuit would not be allowed to go forward without a "substantial basis" that the domestic violence claim was "devoid of any reasonable factual support," and that since the order had been extended, the claim must have had some factual support. Clarifying a procedural issue, the court also decided that defendants in such suits have a right to bring an interlocutory appeal to the Appeals Court, "regardless of the court in which the SLAPP suit was brought."


Frizado v. Frizado, 420 Mass. 592, 651 NE2d 1206 (1995) Although the court in Zullo v. Goguen changed the appropriate method of appeal (see below), this case is still helpful for its discussion of the constitutionality of 209A proceedings and the process that should be followed in a 209A hearing.


Szymkowski v. Szymkowski, 57 Mass.App.Ct. 284, 782 NE2d 1085 (2003). A father appealed from a child protection order under ch. 209A. The Appeals Court held that there were "distinct overtones of the use of c. 209A as a weapon in circumstances of reciprocal hostility between divorced parents." While the father's conduct was unacceptable, "c. 209A is not designed as a prod toward better parenting. Rather, the statute, as we have said, aims to prevent physical harm." There are other, more appropriate remedies for poor parenting, and the order was vacated.


Vaccaro v. Vaccaro, 425 Mass. 153, 680 NE2d 55 (1997). Even though a 209A order against him was vacated, a husband could not have record of the order expunged from the domestic abuse registry.


Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 700 NE2d 296 (1998) "Expiration of abuse prevention orders issued against former husband did not render his appeal moot, where entries of the orders were made in the Commonwealth's criminal records system, former husband could be adversely affected by them, and former husband had interest in removing stigma from his name and record by establishing that orders were not lawfully issued."

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