Domestic Restraining Orders: Traps for Unwary Parents

Massachusetts lawyer James M. Lynch reviews how Abuse Prevention Orders can affect unwary parents.

James M Lynch

The standard domestic Abuse Prevention Order issued by the Trial Courts in Massachusetts under **G.L.c. 209A** (209A Orders) presents a veritable blast of red flags for defendants. Each of those red flags represents a real danger to the liberty of the person who is now obligated to stay away from the complaining party. Cases where the parties don’t have any children together present the easiest of all situations: the Defendant must stay away and have no direct or indirect contact with the Plaintiff/complainant. Simple enough. Those 209A orders leave no room for doubt in determining what the Defendant’s obligation is. When the parties have children under the age of 18, however, those dangers are often obscured by a very narrow exception the judge may carve out to accommodate for child visitation. In those instances, many defendants are either unaware of just how narrow the child visitation exception is or just how easy it is to run afoul of that exception and end up in jail. It is when children and visitation are in play that a gray area opens — one fraught with peril for the party on the business end of the 209A Order.

Read the Fine Print in the 209A Order

**The standard 209A Order** is pre-printed form that allows the trial judge to hand-write the specifics of each case into the form. The form also allows for some variation if the judge deems it appropriate. Section A(8) of the Order form deals with visitation with the following check box: “You may only contact the Plaintiff to arrange this visitation.” The form goes on with a series of boxes for the judge to check for permitted contact — i.e., phone, email, text or “other” with space for the judge to hand-write in an alternative method of contact. Because this exception is set apart and clearly delineated, it is easy for all to see. Not so clearly delineated, however, is the following language seemingly buried in Section A(2) :

“YOU ARE ORDERED NOT TO CONTACT THE PLAINTIFF, in person, by telephone, in writing, electronically or otherwise, either directly or through someone else, and to stay at least _____ yards from the Plaintiff even if the Plaintiff seems to allow or request contact.” [emphasis added].

This highlighted warning is the part of the 209A Order that is probably the part that is most overlooked and the part that most commonly gets defendants in trouble.

Wait, what? He/she can contact me but I can’t contact her/him?

Yes, exactly!

It’s relatively easy to follow the strict prohibitions contained in the 209A Order immediately following its issuance. But over time, when the parents have settled into a routine, the emails or the texts sometimes can become more relaxed, as well. That is where the hidden danger for the Defendant arises, particularly in cases where a divorce case is still ongoing. For example, there are a variety of other matters besides those involving children where parents feel the need to communicate directly in an active divorce case including, child or spousal support, health insurance, or even general household matters. All these other contacts about non-permitted matters can get shoe-horned into permitted communications about child visitation. Thus, the parties to the 209A Order unwittingly begin setting dangerous precedents relating to contact — dangerous only to the Defendant who is the only one at risk. All the while, the offender thinks these other topics are given cover by the fact that the core message of child visitation emails, texts or phone communications. They aren’t.

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Exceptions for Emergencies?

There are other seemingly benign contacts between parties to a 209A Order, not involving visitation issues, that can draw any unsuspecting Defendants into unforced errors in 209A cases. It is not uncommon, for instance, for a plaintiff spouse to invite the defendant spouse back into the vacated home to perform emergency household repairs. The house is almost always a joint marital asset that needs to be protected. Perhaps a leaking pipe needs to be fixed immediately. This type of contact may seem like a common-sense exception to the 209A Order but the fact is that the clear language found in the standard 209A Order doesn’t provide for such emergencies. The police have a word for these types of unpermitted contacts: they call them “Evidence”. In the event things go sour between the parties at some point in the future, the Defendant will have created a paper trail of violations — however seemingly innocent — and the police will arrest. But even if the police are never called, a divorce litigant who is also on the receiving end of a 209A Order gives the other party in the divorce a great deal of leverage on other issues when he/she engages in such unpermitted contacts.

Unfair as it may seem, the only person obligated to obey the prohibitions in a 209A Order is the Defendant and he/she would be wise to stay on point and limit written and recorded messages with the other party to matters of child visitation. Failure to do so can have disastrous consequences.

About the Author: James M. Lynch is a Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.

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