D.C. v. G.F. (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, G.F., appeals from the issuance of an abuse prevention order under G. L. c. 209A. The plaintiff obtained an ex parte restraining order and the matter was set by the court for a two-party hearing. See G. L. c. 209A, § 4. At the time of that hearing, the defendant already had a 209A restraining order against the plaintiff from a different division of the Boston Municipal Court. Indeed, the plaintiff had already faced criminal charges for allegedly violating that order. At the hearing, both parties appeared without counsel, and it was the first opportunity the defendant had to respond to the allegations against her.

An ex parte order may be extended only if the judge finds the plaintiff suffered from abuse as defined in G. L. c. 209A, § 1, as “[n]o presumption arises from the fact that [the ex parte] order has issued; it is the plaintiff's burden to establish that the facts that exist at the time extension of the order is sought justify relief.” Smith v. Jones, 67 Mass. App. Ct. 129, 133-134 (2006). Abuse is defined by statute as “the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; [or] (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” G. L. c. 209A, § 1.

Here, the judge explicitly found that the defendant was not “a threat physically or otherwise to [the plaintiff].” Rather, the judge mistakenly stated that “[o]ne of the bases for the court to extend a restraining order under 209A is whether there may be potential for strife when you have children in common and you haven't worked out a way to deal with one another to co-parent with one another. That's a basis that the court has to extend the order.” The judge then said, “The court's basis for extending the order is that what appears to be the tensions between you both in how you're going to go forward and co-parent with one another. And that's the only basis that the court is extending the order.”

Because this was not a proper basis for the issuance of an order under G. L. c. 209A, the order entered on January 16, 2020, is vacated, and the case is remanded to the trial court with instructions to dismiss the complaint.²

So ordered

vacated and remanded

FOOTNOTES

2.   In light of our disposition, we need not reach the defendant's arguments with respect to the criteria for issuance of a mutual restraining order. See Sommi v. Ayer, 51 Mass. App. Ct. 207, 210-211 (2001); G. L. c. 209A, § 3.