How to get a Permanent Abuse Prevention order under 209A terminated and the standard used by the courts

Under Massachusetts general law c. 209A, victims of family or household abuse can seek help from the State to prevent further abuse by orders prohibiting a defendant from abusing or contacting the victim, or requiring a defendant to stay away from the victim’s residence or workplace. Any party may seek to get a permanent abuse prevention order (“209A order”) terminated. If the party does not challenge the entry of a permanent 209A order on direct appeal it becomes a final equitable order. While a 209A order is a civil order, a violation is a criminal offense.

In MacDonald v. Caruso, the defendant had a permanent abuse prevention order against him. He did not challenge the permanent 209A order on direct appeal. However, as with the defendant, a party may seek termination of the order where it is no longer equitable that the judgment should have future application.

The standard applied by the court depends on which party is bringing the motion. Where a defendant seeks to terminate a 209A order, the defendant must show by clear and convincing evidence that there was a significant change in circumstances, and under the totality of the circumstances, the protected party no longer has a reasonable fear of imminent serious physical harm from the defendant. Mere passage of time and compliance of the order by the defendant do not constitute a significant change in circumstances. However, where the significant change in circumstances is not foreseen when the last order was issued, these two factors may be considered in deciding whether the defendant no longer poses reasonable threat of imminent serious physical harm to the plaintiff.

In Caruso, the court stated that the defendant’s own attestations of moving past his history of domestic abuse and retaliation fell short of meeting the burden of proving by clear and convincing evidence that the defendant no longer poses a threat to the plaintiff. Thus, it is in the interest of the defendant to get an attestation from others demonstrating the defendant has moved on from his history of domestic abuse and retaliation.

As explained above, any party may file a motion to terminate a 209A order. If the defendant files the motion, the defendant has the burden of proving by clear and convincing evidence that, due to a significant change in circumstance, the plaintiff no longer has a reasonable fear of imminent serious physical harm. If the defendant has not met his burden to terminate a 209A order, the order will not be terminated, regardless how burdensome the collateral consequences, because the plaintiff’s safety is the only relevant issue. However, if the defendant does meet his burden, the court should terminate the order because the plaintiff does not need protection in the future through the application of the order.

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