In Massachusetts, an Abuse Prevention Order, commonly referred to as a restraining order, are issued under Mass. General Laws Ch. 209A. Once issued, a defendant may seek to terminate a permanent order, but must first meet a significant burden of proof. In a recent decision from the State’s highest court, the Supreme Judicial Court (“SJC”) opined that in order for a defendant to terminate a permanent Abuse Prevention Order, he or she must prove by clear and convincing evidence, that as a result of a significant change of circumstances, the plaintiff no longer has any reasonable fear of imminent serious physical harm. The SJC went on to state further “the significant change of circumstances must involve more than the mere passage of time, because a judge who issues a permanent order knows that time will pass. Compliance by the defendant with the order is also not sufficient alone to constitute a significant change in circumstances, because a judge who issues a permanent order is entitled to expect that the defendant will comply with the order.” The SJC also found that the failure of the plaintiff to appear at the hearing to terminate the restraining order is not by itself sufficient grounds to grant the termination. In so ruling, the SJC stated “a judge should certainly give serious consideration to the plaintiff’s position regarding a defendant’s motion to terminate, regardless whether the plaintiff opposes or supports the motion, but a judge may not give meaning to the plaintiff’s silence or failure to appear, because a judge cannot know whether the silence reflects acquiescence in the termination or continued fear of the defendant.…”
The SJC ruled further that the mere fact that the defendant now resides more than six hours away from the plaintiff is not by itself sufficient to deny the restraining order. While the defendant would have to incur significant expense and effort to violate the restraining order, doesn’t remove the fact that it is still feasible for him to do so. Further, the SJC stated that the fact that the defendant is married to another woman, by itself, does not prove that he has truly moved on in his life. The SJC found that to prove that he truly moved on in his life, the defendant needed to demonstrate not only has he moved on to another relationship but that he has “moved on” from his history of domestic violence and retaliation.
If you have any questions regarding the termination of a Massachusetts restraining order, please contact an attorney at Hamblett & Kerrigan.
Kevin P. Rauseo is a former director at Hamblett & Kerrigan P.A. and has since been appointed as a Justice for the New Hampshire Circuit Court. Please feel free to contact another attorney at Hamblett & Kerrigan to discuss your legal issues.