Do I Need a Lawyer for a Restraining Order?

Individuals may represent themselves at restraining order hearings in Massachusetts; however, there are compelling reasons to hire an attorney—particularly if you are defending against such an order.

A restraining order may negatively affect your life in a number of ways. Most obviously, if a judge grants such an order, you may be required to stay physically distant from the plaintiff’s person, home and/or work address, and/or their minor children. You may also be ordered to have "no contact" with the plaintiff and/or their minor children. If you live with the plaintiff, a "stay away" order may result in you being evicted from your residence—even if you own the home.

Furthermore, although a restraining order is a civil matter, they often lead to criminal charges. Once an order issues, a single allegation that you violated one of its terms is all it takes for a criminal complaint to issue. Even more troubling, the plaintiff's allegations at the hearing will be in the form of a sworn affidavit and sworn testimony provided by the plaintiff. This gives the evidence against you some official weight in the eyes of the court. If the allegations themselves strike the judge as potentially criminal (e.g. involving threats or domestic violence) it is not unusual for the judge to direct a plaintiff to speak with a victim-witness advocate from the District Attorney’s office. In this way, criminal charges may flow from the evidence of "abuse" presented for a civil restraining order based on allegations of past conduct.

If you wish to actively defend yourself at a restraining order hearing, you are entitled to present evidence and make statements to the judge on your own behalf. This can be very helpful, but it carries serious risk as well. In order to speak on your own behalf, you will need to be sworn in by a clerk and agree to “tell the whole truth and nothing but the truth, so help you god.” If you make statements that are incriminating, they can be used against you in the future at a criminal trial. A good attorney will act as a filter and spare you the risk of putting personal statements on the record in the presence of a judge and prosecutors.

For all of these reasons, it is far better to explain your position to an attorney and let them argue on your behalf. Not only will a good attorney be able to lend strength to your arguments based off their knowledge of court practices, but they will also insulate you from the many destructive consequences that may arise at a contentious restraining order hearing where you choose to speak on your own behalf.

Attorney Patrick M. Winn is an expert with Abuse Prevention and Harassment Prevention Orders in Massachusetts. For more information you may contact him at any time at (857) 415-2415.

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