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HOW TO GET OUT FROM UNDER A TEMPORARY RESTRAINING ORDER FOR ALLEGATIONS OF ABUSE OR HARASSMENT

Posted by David Katz | Mar 17, 2018 | 0 Comments

A. If you get served with a restraining order for allegations of abuse or harassment you may have grounds to challenge it and potentially expunge it from the state records system.

In today's world, people often utilize any means at their disposal to gain an advantage over the next person for a whole bunch of different reasons. The same holds true for the way people often utilize and manipulate the legal system to their advantage. Over the last several years, Massachusetts has seen a steady rise in complaints filed under the Abuse Prevention Act, G.L.c.209A and the Anti Harassment Order statute, G.L.c.258E. Along with a rise in the filing of complaints under both statutes has come an increase, as expected, in the number of falsely and inaccurately filed complaints by spouses, significant others and co-workers. Quite often, these complaints are filed for reasons other than abuse and are done merely for spite, control and /or revenge.

Make no mistake about it. If an order is granted against you it can spell real problems down the road particularly with future employers. If you believe you have been the unfortunate recipient of such an order, you can successfully challenge these orders if you show that the complaint and supporting affidavits and/or documents were factually in error or, at most, were fraudulent in nature. This applies to any restraining order, whether it was in effect for ten days or for an entire year, and even an order that was extended on a year to year basis.

1. The background.

Having said this, I was retained recently to represent an individual who is currently employed as a high-level executive with a Metrowest Boston high tech company. He has been employed with his company for a number of years, has attained significant professional and financial success and is presently being considered for an additional promotion in the near future. His estranged wife, with the support of her daughter from a first marriage, had filed a complaint against him under the Abuse Prevention Act and, moreover, had obtained a temporary restraining order against him.

The order's language was standard in nature which, among other things, prohibited him from communicating or visiting with his wife until further notice of the court. To my client, being ordered by the Court not to talk with and/or see his wife was the least of his problems. He was already living apart from her for almost a year and a half at the time the complaint was filed. His major concern was how the presence of this order would affect him when it comes to any future employment, particularly when he was under consideration for an upper-level management position. He knew that if the order was not eliminated that he might have to have to explain it away forever to either his present employer or any future employers.

When I reviewed the affidavit and complaint I immediately realized that his wife had made allegations that were completely unsupported by the facts. In particular, the facts of the complaint and affidavit centered around an incident that took place earlier this month wherein the parties got into an argument over the use of a car by his wife's daughter that was being paid for and insured by my client. The wife's daughter, who for some reason did not like my client, had damaged her car which was otherwise owned by my client. His wife was playing a game of control and had at least, initially, successfully used the local district court to assist her in this quest. In my first meeting with my client, we poured through the multi-page affidavit on a line by line basis. In my review of the papers, I had asked my client questions regarding his wife's allegations of his drinking and abuse. Of course, questions of this kind are always difficult to ask any client but absolutely needed to be asked under the circumstances of this case.

Based on our discussion, it turned out that the allegations were false and carried out as part of some kind of scheme by her to exact revenge. It turned out that her motivation in bringing this complaint had everything to do with her perception of the way my client was treating her daughter and having nothing whatsoever to do with my client's allegedly abusive conduct toward her.

2. Going into overdrive.

Once I was convinced of my client's position, I began to assemble a defense on his behalf. By the point in time from when he came into my office until the second hearing, we had only six days to get our ducks in a row. As we needed as much factual ammunition as we could possibly muster in his defense, I asked my client if he had maintained any kind of electronic and/or paper trail that would evidence the relationship of the parties for a period of two months before the date when the complaint was filed. My client then turned on his cellphone and realized that he had an entire trail of texts between he and his wife demonstrating that he and his wife had a very civil relationship during that period. 

In fact, on the very day of the filing of the affidavit and hearing alleging abuse by my client, there were text messages from his wife that did not even imply any kind of abusive conduct, harassment or intimidation. The real kicker here was that, in many of the messages to my client, his wife would start each text with the salutation "Hi honey."  In fact, in the text messages, there were several requests by his wife to go out to lunch. As it turned out, the parties had gone out to lunch several times up to and including a couple of days before the initial hearing. My client also told me that during the six week period prior to the granting of the order that his wife had invited him over to her house alone to discuss several issues relating to a wind-down of their marital relationship.

Our goal was to have the court to deny an extension of the original order, vacate the order and, most importantly, move to expunge the entire record from the court system based on what we asserted to be fraud on the court by my client's wife. Under recent Massachusetts case law, and in order for an expungement order to be appropriate, my client, as the moving party, must be able to prove that the original abuse protection order was obtained through fraud upon the court. The decision went on to declare that fraud occurs when "a party has sufficiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Given the high threshold to prove fraud, we knew we had our work cut out for us at the hearing. To that end, I prepared a multi-page memorandum of law for consideration by the court.

3. Case closed.

 At all times, our collective strategy was to demonstrate that my client's wife had taken out this order based on ulterior motives as opposed to an actual claim that she was abused. In addition, we had clearly demonstrated that her affidavit lacked specificity as to dates and times of the alleged abusive incidents. After deliberation by the court, and after consideration of our legal memorandum, the judge allowed all of our motions including the motion to expunge. In its decision, the judge opined that my client's wife had deliberately calculated to mislead the court through her affidavit. As the moving party, we had provided the court with recent case authority supporting our position that the court had the inherent authority to expunge the order from the statewide domestic violence registry system. The various text messages proved to be fatal to her case as they evidenced in an objective manner the conduct between the parties as opposed to the subjective allegations rendered in her complaint.

To be sure, having a record of a civil restraining order on your record could prevent you from being accepted to certain academic institutions as well as have a dramatic impact on future employment. Additionally, the presence of an order may affect your ability to become a foster parent, run for political office or prohibit you from working in certain occupations. If you are the recipient of an abuse prevention order under G.L.c.209A or 258E, contact the Katz Law Group at 508-480-8202 to help you consider your options in defending your rights. 

 

About the Author

David Katz

Attorney David S.Katz is the founder and managing partner of the Katz Law Group, P.C., located in Marlborough, Massachusetts...

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