Divorce Law Monitor

Is a Permanent Restraining Order Really Permanent?

April 18, 2019


It is the public policy of the Commonwealth of Massachusetts to protect citizens from the devastating impact of domestic violence. General Laws c. 209A provides “a statutory mechanism by which victims of family or household abuse can enlist the aid of the State to prevent further abuse” through court orders prohibiting a defendant from abusing or contacting a victim, or requiring a defendant to stay away from the victim’s home or workplace. Commonwealth v. Gordon, 407 Mass. 340, 344, 553 N.E.2d 915 (1990). See G.L. c. 209A, § 3. A 209A restraining order, also known as an abuse prevention order, can be issued ex parte, meaning without the defendant present in court, if the victim shows a substantial likelihood of immediate danger of abuse. An initial order issued without the defendant present then must be reviewed within 10 days to allow the defendant an opportunity to be heard by the court. After the hearing, the temporary abuse prevention order may be extended for no more than one year if the plaintiff proves, by a preponderance of the evidence, that the defendant has caused or attempted to cause physical harm, committed a sexual assault, or placed the plaintiff in reasonable fear of imminent serious physical harm. When the initial order expires after one year or other period of time, the plaintiff may seek to extend the order for an additional period of time necessary for protection, or the plaintiff may obtain a permanent order. So what, exactly, is a permanent order?

A 209A abuse prevention order that is made permanent is one that exists indefinitely without the need to return to court to seek extension. It is not, however, necessarily everlasting. A defendant can return to court at any point in the future to seek to terminate a permanent abuse prevention order. A defendant who seeks to terminate a permanent 209A order must show by clear and convincing evidence that, as a result of a significant change in circumstances, it is no longer equitable for the order to continue because the protected party no longer has a reasonable fear of imminent serious physical harm.

In the March 2019 decision of L.L. v. M.M., 95 Mass.App.Ct. 18 (2019), the Appeals Court denied a former husband’s request to terminate an abuse prevention order his former wife had obtained 16 year earlier.  The former husband reported that he had had no contact with his former wife since August 2001; that he now lived in Nevada and has been married to another woman since 2010; that his current wife was from the Philippines and she has dual citizenship; the couple traveled to the Philippines at least once a year and he was stopped by U.S. Customs and Border Officials almost every trip and detained for approximately 45 minutes; and further, the defendant was employed as a commercial truck driver for a company that performs a majority of its work on Federal Government worksites and for Prisons. As a result of the 209A order, neither the defendant nor the company that employs him was allowed to work on certain government or prison worksites. The former husband’s request was denied in part because the former husband did not show that he had ‘moved on’ from his history of domestic abuse and retaliation, which he might have shown through the testimony of his present wife, or through documentation confirming he had no criminal record and had not been involved in any violent incidents. The former husband having established a new life outside of Massachusetts was simply not enough to terminate the restraining order. The fact that the former husband’s travel and work life were complicated by the abuse prevention order was irrelevant. The Appeals Court held that where a defendant has failed to meet his burden of proof to terminate an abuse prevention order, the order shall not be terminated, regardless of how onerous the collateral consequences, because the only relevant issue is the safety of the plaintiff.

While a permanent restraining order may not truly be permanent, it is also not simple for a defendant to terminate.

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