A reality of pre or post-divorce proceedings sometimes involves filing for restraining orders or abuse prevention orders against a party. A civil restraining order is a court order telling someone to stay away from you or to stop doing something that affects you, such as phoning you when you’ve asked them to stop calling. The following people may file for a restraining or protective order:
- Persons cohabiting with each other
- Persons who cohabited with each other but who no longer share the same residence
- Persons related to the defendant by blood
- Persons related to the defendant by affinity (a connection between one spouse and the blood relations of the other).
It is important to note that the person who wishes to have the order of protection (known as the plaintiff) must file, in person, at the court, for the order. A hearing will be scheduled and the plaintiff and defendant must appear. The plaintiff must present his or her evidence as to why there is a need for a restraining order. The defendant has the right to contest the restraining order by testifying or presenting witnesses.
If the plaintiff is granted a restraining order by the court, both parties should keep a copy of the order on them at all times. The defendant should not contact or reach out to the plaintiff, even through the use of a third person. Either party may call the police immediately if there is a concern about a violation of the restraining order.
In New Hampshire, initial restraining orders are temporary and do not require that the defendant appear at court at the time the restraining order is requested. Temporary orders will be issued if the plaintiff shows an immediate and present danger of abuse. If a temporary order is granted, it is a crime to violate the order. Temporary orders do expire and the court will hold a hearing on the final order of protection within thirty (30) days, if not earlier. If the plaintiff shows by a preponderance of the evidence that the defendant represents a credible threat to the safety of the plaintiff, then the restraining order will remain in place for one (1) year. NH RSA 173-B governs restraining orders for domestic violence issues involving a family/household member or an intimate partner. This is different than stalking orders, which can be between two people not involved in an intimate relationship or not residing in the same home.
Massachusetts law M.G.L c. 209A addresses restraining orders from abuse from a household member or intimate partner.
Massachusetts has similar hearings to New Hampshire when a protective order has been filed.
Any relief granted by the court, even temporary relief, shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order. The defendant must be given notice of the hearing and appear at court if he or she wishes to challenge the request for a protective order.
Smith-Weiss Shepard & Kanakis, P.C. can help you draft a protective order or defend you in one of these hearings in order to ensure you the best and safest possible outcome, as well as your rights.