Objective Standards Must Be Used In Issuing and Extending Restraining Orders

A restraining order under Massachusetts law may be issued to a family or household member on one of three grounds:

1. Attempting to cause or causing physical harm;
2. Placing another in fear of imminent serious physical harm; or
3. Causing another to engage involuntarily in sexual relations by force, threat, or duress.

Most of the applications under M.G.L. c. 209A §1 for restraining orders are based on the first two reasons. Most common is the second, relative to fear of imminent serious physical harm. The judges today tend to err on the side of caution. In other words, they stretch the law to make it apply in order to issue a restraining order at the first stage of the proceedings (which is ex parte, meaning the Defendant is not notified and has no opportunity to be heard). There are also well-trained advocates who work for the courts who are well versed in the language needed to establish the basics for requesting a restraining order.

The court has now indicated that when a sufficient time has passed, usually a one-year period, the court must determine whether an apprehension of anticipated physical force is reasonable. A court will look to the actions and words of the Defendant in light of the attendant circumstances. This is so because a “reasonable fear of imminent serious physical harm” is determined by an objective standard. The complainant’s fears “must be more than subjective and unspecified: viewed objectively, the plaintiff’s apprehension that force may be used must be reasonable.”

When there is an application for an extension, a judge has wide discretion, but no presumption arises from the fact that a prior order had been issued. The Plaintiff must establish that the facts that exist at the time the extension is sought justify relief.

Another important issue that was decided is that when an extension request is made, the judge is not limited to issuance of a permanent injunction or not. The statute permits extensions for such additional time as the judge deems necessary to protect the Plaintiff from abuse.

Persistent behavior by a Defendant would be required for most if not all extension orders. Therefore, if the abuse has stopped and there has been full compliance with the original order, the chances are greatly reduced that a new order would be extended for any period of time. Smith v. Jones, 75 Mass. App. Ct. 540 (2009) citing Commonwealth v .Gordon, 407 Mass. 340, 349 (1990) and Iamele v. Asselin, 444 Mass. 734, 737 (2005) and Vittone v. Claremont, 64 Mass. App. Ct. 479, 486 (2005) and Carol v. Kartell56 Mass. App. Ct. 83, 86–87 (2002)