Restraining orders are civil orders issued by the court which prohibit a person from having contact with or abusing the person seeking the restraining order, this includes indirect contact through others. Restraining orders can be obtained at anytime; a complainant must show that they are in fear of immediate physical harm. Many people charged with domestic assault and battery also face a restraining order hearing in front of a judge. A judge will listen to both sides under oath and decide whether there is an immediate fear of physical harm that exists. Allegations of a recent assault or threats made are enough to obtain a restraining order which can be issued for up to one year.
After an arrest for assault and battery, a defendant appears in court the next day and may face a restraining order hearing. A judge has the power to order that the defendant remain out of the home and away from the children and spouse for up to one year. It is important to have legal representation at these hearings you must be very careful of what you say, your testimony is under oath and usually recorded and can be used against you in any future criminal proceedings. At times it is best to remain silent and have a lawyer explain to the judge your concerns as to the terms of the order. Many people find themselves ordered to stay out of the family home and away from their children for a long period of time without being able to communicate with their spouse or children.
Terms of a restraining order can be modified in probate court. A probate judge may allow for visitation rights with children and may set up different terms than were issued at a previous restraining order hearing.
A restraining order is a civil order that will only enter the criminal arena if it is violated. A violation of a restraining order is treated as a criminal offense and can lead to a new charge. A spouse who was arrested and charged based on the allegations of another can find themselves out on the street and ordered not to have communication with the family. You need to speak to an experienced criminal defense attorney who can help guide you through these difficult circumstances and make sure that your rights are protected.
Frank Fernandez has represented clients facing domestic violence charges and restraining orders throughout all of Massachusetts, he has been successful in having restraining orders not issue against his clients and making sure that his client’s rights are always protected. If you are facing domestic assault charges or a restraining order hearing in Boston or anywhere in Massachusetts contact our office for a free confidential consultation regarding your case.