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Requirements for a 209A Restraining Order: Objectively Reasonable Fear and Imminence of Harm
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Attorney James M. Lynch reviews examines the requirements of objectively reasonable fear and imminent harm in Massachusetts restraining orders.

Restraining orders occupy a very tricky place in Massachusetts family law. On the one hand, they can do a huge amount of good: By keeping one person away from another, a restraining order issued under G.L.c 209A can prevent emotionally traumatizing harassment or even hot-blooded physical violence. However, on the other hand, restraining orders can be abused by the people who claim to be victimized by someone else, allowing them to color an alleged perpetrator with the taint of domestic violence for their own personal ends.

Just like any tool, 209A restraining orders in Massachusetts can do a lot of harm or a lot of good. This puts family law judges in a rough position of figuring out when such a restraining order should be issued because it is needed, or whether it should be denied because it is merely wanted for ulterior motives. A recent appellate case highlights some of the lines that the courts have drawn to help them make this decision.

Table of Contents for this Blog

  • What Happened in K.K. v. U.M.: 209A Order Follows Divorce
  • A Reasonable Fear of Physical Harm
  • An Imminent Threat: 209A Requires Immediate Danger for Order
  • More than a “Generalized Apprehension” Is Needed for a 209A Order

What Happened in K.K. v. U.M.: 209A Order Follows Divorce

A husband and wife living in Massachusetts with one child got a divorce. The child’s father had a history of suicidal behavior and had once thrown a couple of things at the child’s mother out of anger, though he had missed and had not hurt her. That incident had happened a year ago, though he had also sent some harassing and racist text messages since their divorce.

What made the mother in the case seek a 209A restraining order against him stemmed from one morning where he was supposed to bring their child to school. However, the child had left something at her mother’s house, so the father had to stop there, first. Once at the mother’s house, the father threw the child’s heavy backpack through the front door, yelled “I can take [the child] to school or I can drop her off [here],” and then left. The mother was upstairs at the time this happened, so there was no chance for her being hit.

When she sought a 209A order and went through the restraining order process, the court granted it. The father appealed to the Massachusetts Appeals Court, though, and they overturned it in their ruling, highlighting two important requirements for a 209A restraining order: Fear of imminent physical harm, and the objectively reasonableness of that fear.

A Reasonable Fear of Physical Harm

In order for a 209A restraining order to be justifiably issued in Massachusetts, the person seeking it has to “prove abuse by fear of imminent serious physical harm,” and also that “the fear [is] reasonable.” Iamele v. Asselin, 444 Mass. 734, 737 (2005). The requirement that the fear also be reasonable is an important one: It makes the deciding judge look at the facts and circumstances from their own eyes, rather than trying to put themselves in the shoes of the person asking for the restraining order.

In light of this, the Appeals Court decided that the recent episode with the father throwing the backpack through the door and storming out was not something that would reasonably make someone fear for imminent physical harm. Of particular importance to the court was the fact that the backpack landed on the ground floor of the house, while the mother was on the floor above. According to the court, this showed there was any intent at all to hit the mother, making her fear unfounded.

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An Imminent Threat: 209A Requires Immediate Danger for Order

Additionally, in order to get a 209A order, movants need to show that the physical harm they fear is imminent. This is because of the unique role that restraining orders occupy in the law: Their purpose is “preventing imminent serious physical harm, not merely responding to past abuse.” Dollan v. Dollan, 55 Mass. App. Ct. 905, 906 (2002). There are numerous other ways, like civil suits, that can better rectify those past abuses. Still, the appellate courts seem reluctant to define “imminent”, which in common everyday usage means “about to happen”. Since the plaintiff has the burden of proof, it would seem incumbent on the plaintiff make the attempt to articulate what he/she believes is imminent. As a practical matter, however, the issuing courts don’t seem to focus on or hold fast that requirement.

This meant that all of the past abuses and problems that the mother had with the father in the case were substantially irrelevant to her 209A request – they were simply too far removed for the courts to take into account.

More than a “Generalized Apprehension” Is Needed for a 209A Order

What courts tend to focus on when determining whether to issue a 209A restraining order is whether there is a specific threat to the movant or whether they have a merely “generalized apprehension.” Dollan at 906. The first is something that a restraining can and should be used to rectify – where there is a definite and ascertainable threat, then a 209A restraining order can direct law enforcement to stop it. The second, though, is not something that can be effectively helped by the legal system without putting severe restraints on the alleged abuser.

About the Author: James M. Lynch is the managing partner at Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. He is also a mediator at South Shore Divorce Mediation.

Schedule a consultation with James M. Lynch today at (781) 253-2049 or send him an email.

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