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A 209A Order from a District Court can provide you with temporary support and custody of your minor children. Only the Probate and Family Court, however, can decide child visitation rights. A 209A Order from that court may be more helpful in dealing with abuse protection that also involves divorce, long-term financial support, child custody, and visitation issues. You may want to speak with a private attorney for Probate Court or call a legal services or victim's services provider for an attorney referral list. Pro bono (free) or reduced fee legal services may be available.
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Chapter 209A, the Massachusetts Abuse Prevention Act, defines abuse as
An Abuse Prevention Order, called a "209A Order," or a "protective order," or "restraining order," is a civil court order intended to provide protection from physical or sexual harm caused by force or threat of harm from a family or household member. You can obtain an order against:
A 209A Order can be obtained in any District Court, Superior Court, or Probate and Family Court in Massachusetts. An emergency 209A Order can be obtained through any police department after court hours, on weekends, and holidays. You do not need a lawyer to file for a 209A Order and there is no charge for filing.
Should you decide to go to a District Court for a 209A Order, you may go to the District Court in the area where you live or, if you have fled to another area to avoid abuse, you may go to the District Court in the area where you now live (Massachusetts Barnstable County Court Locations). Go to the Clerk's Office in the court and ask for a "protective order" or a "209A Order," You will receive a packet of forms to complete as an application for a protective order.
In some courts, there may be a Court Advocate from a local battered women's service agency to help you with the form. A Victim/Witness Advocate from the District Attorney's Office is also usually available for assistance and to discuss the option of filing criminal charges against your abuser. Ask someone at the Clerk's Office to direct you to the District Attorney's Victim/ Witness Office for help. You do not have to file criminal charges in order to obtain a 209A Order. However, criminal charges can be helpful in holding a batterer responsible for criminal acts committed against you. If there is a criminal violation, the Court can also require a batterer to obtain counseling or other treatment.
On the application or complaint forms for a 209A order, you need to make a sworn statement (affidavit) describing the facts of any recent or past incidents of abuse. It is important to provide as much information about the abuser as possible. You must also disclose any other existing 209A Orders from any court or any Probate Court action you are involved in, including any divorce or child custody proceedings.
You may request the judge to order that the abuser:
After you have completed the 209A complaint or application forms, return them to the Clerk's Office and ask when the judge will hear the applications for protective orders. The Clerk's Office will tell you the time and courtroom location for your hearing.
At your hearing, the judge will ask why you need a protective order and will review your complaint or application forms and affidavit. The judge will be deciding whether it appears there is a substantial likelihood of immediate danger of abuse. He or she will probably ask you some clarifying questions. In some courts, a "209A Briefing Session " is held before the hearing and a Court Advocate or a District Attorney's Victim / Witness Advocate will explain the hearing process and be with you in the courtroom.
The judge may grant or deny the 209A Order after speaking with you. If the judge grants the Order, you will receive a Temporary Order for up to ten days. A court date will be scheduled within 10 court days for you to return to court for a Permanent Order, which lasts for a year and can be renewed. Keep your copy of the Order with you at all times. The judge will also order the abuser to surrender all guns and gun permits he or she possesses.
The police will deliver (serve) a copy of the Order to your abuser and will keep a copy on file at the police station. It is important to provide the abuser's home, work, or other likely addresses so that the police can serve the Order as quickly as possible and provide the required notice of the next court date.
A violation of certain terms of a 209A Order (orders to vacate the premises, refrain from abuse, and have no contact with you) requires that the police arrest your abuser.
A violation of a 209A Order, once the abuser has notice of the Order, is a criminal offense.
The Ten Day Hearing requires that you return to the court on the date given on the Order. If you do not return to court, the Order will not be in effect after that date. The hearing offers the chance for both parties, you and the abuser, to come before the judge and offer information (evidence) as to why a permanent 209A Order, which lasts for one year, should or should not be granted. Bring any hospital records, photographs or police reports you may have for the judge to review. You may also bring a support person with you. The abuser may be present at the ten day hearing and may oppose the 209A Order. If the abuser is not present and has been served with the Order, the judge can still grant the Order for one year period.
If a 209A Order is issued by the judge for a year, you must return to the court for an extension of the Order at the end of that year or the Order will expire.
Any changes in the Order before that date must be made with both you and the abuser appearing in the same court where the Order was first given. A request to change or amend the Order can be made at the Clerk's Office, and a hearing will be arranged before a judge.
A minor under 18 years old can obtain a 209A Order with some restrictions. Generally, a parent or guardian needs to be present, but the judge can decide to issue a 209A Order without a parent present if the minor appears to be in danger. In some cases, the Department of Children and Families may offer assistance in gaining help for a minor. Many high schools and colleges also offer support groups for students in violent relationships. A parent may also obtain a protective order for his or her child.
Once a 209A Order is issued, violation of certain terms of the Order is a criminal offense. Violations of orders to refrain from abuse, to have no contact, and to vacate a household, multiple family dwelling or workplace, can be prosecuted criminally under chapter 209A. If the abuser violates the order, call the police immediately. Show the Order to the police and explain how it was violated ( a punch, slap, threat; entering your house or apartment or refusing to vacate; or, any contact with you at home or your workplace, either in person, by telephone or mail). The police must arrest the abuser if they believe or can see that the terms of the Order were violated. If you do not call the police, you may be able to file an application for a criminal complaint on your own at the Clerk's Office in the District Court. A Victim/Witness Advocate can assist you with that process.
If you put yourself in contact with the abuser, he is vulnerable to arrest. Therefore, if you want any terms of the order to no longer apply, you should return to court and ask that the order be modified or vacated.
If the abuser is arrested, seek assistance from the Victim/ Witness Advocate in the District Attorney's Office the next morning after a nighttime arrest, or at any time during the day at the courthouse. A Victim/Witness Advocate will explain what the charges mean and what will happen next. The Advocate will also offer ongoing information, referral for services, and cases updates throughout the time the case is in court.
In addition to the crime of violating a 209A Order, an abuser can be charged with a number of other crimes committed at or near the time of the violation, some of which may include:
Once a criminal complaint has been issued or an arrest made, the abuser will be charged with the crime or crimes at an arraignment proceeding in the District Court. A bail hearing will be held to determine whether the defendant/abuser will be released from custody, the court must make a reasonable effort to notify you of the release, even if you are not present in court.
It is important to provide information to the Assistant District Attorney before the arraignment and bail hearing regarding the history of the abuse and a description of the most recent abuse, including any pictures or hospital records of injuries. You should also mention the location of any guns or other weapons that you believe the abuser has in his or her possession.
The Assistant District Attorney will bring this information to the attention of the judge, along with your safety concerns and fears at this time. The judge may also consider whether the defendant/ abuser should be jailed until trial; or, if the defendant/ abuser is to be released, what the bail and conditions of bail will be.
The Assistant District Attorney represents the Commonwealth of Massachusetts in prosecuting the case and works with the Victim/Witness Advocate to address your interests and assist you during trial.
Interviews will be held with you before the trial, to gather information and evidence for prosecution. Every effort will be made to consider your needs and safety in going forward with the case. The safety of your children will also be priority.
Prosecution may provide the means to gain batterer's intervention services for the defendant/abuser as part of a sentence recommendation. Very few batterers seek or stay with these services on their own, without court orders and probation supervision. An Assistant District will speak with you about different sentences that can be imposed if the defendant /abuser is found guilty by a judge or jury or pleads guilty. The sentence asked for may include drug or alcohol counseling, required attendance at a batterer's intervention program, supervised probation, and /or jail time.
Certified batterer's intervention programs provide services in very strict group settings to try to help batterers learn to accept responsibility for their violence, as well as understand and change their controlling and abusive behavior.
The groups are led by certified batterer's intervention counselors trained in dealing with domestic violence offenders. The programs work with the courts and victim services to help make sure that partners of batterers remain safe. The programs may involve weekly sessions of 1 to 2 hours in length. The batterer must participate in the program for a minimum of 80 hours. Group leaders feel your safety is a priority concern and will keep ongoing contact with you.
There are no guarantees that the violence will stop because the abuser attends a certified batterer's intervention program. Many abusers drop out of programs or do not comply with the requirements, or only reduce their abuse temporarily. If the judge requires attendance as part of a sentence, dropping out may mean the defendant/abuser may have to serve jail time. The abuser must want to change the abusive behavior and work hard at making those changes. Promises to change, flowers and apologies are not enough. You deserve to be safe and free from abuse.
Statistically, the most dangerous time for the victim is when leaving the batterer. The abuser may feel he is losing control and become dangerously angry. Take steps to protect yourself from abuse or punishment from your abuser. Please trust your instincts. If you are afraid that something may happen, take your feelings seriously and protect yourself. You know your situation better than anyone else.
Develop a safety plan that includes an escape plan for you and your children should a violent incident occur. During an incident, try to move away from an area or room where access to weapons might increase your risk, such as the kitchen, or where you can be trapped or easily injured.
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