Appeals Court Finds that Pre-Trial Conditions of Release and DCF Involvement are Inadequate Substitutions for the Protection of an Ch. 209A Abuse Prevent Order

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In Vera V. v. Seymour S., the Appeals Court recently considered whether it was proper for a trial judge to deny a request for an extension of an ex parte abuse prevention order pursuant to G. L. c. 209A, based on the defendant ("husband") being subject to certain pretrial release conditions that had been ordered in the related criminal case and the subject of a Department of Children and Families ("DCF") investigation. The criminal case involved allegations of physical abuse of the plaintiff ("wife") by the husband while the wife was attempting to breastfeed the parties' newborn. The pretrial release conditions in that case included a "no abuse" order that could have resulted in the husband's being held without bail if he violated them.

Following multiple alleged incidents of abuse, the wife obtained the aforementioned ex parte abuse prevention order and filed a report that resulted in the husband's arrest on domestic assault and battery charges. At the hearing on the extension of the ex parte abuse prevention order, counsel for the husband mistakenly represented to the trial judge that the pretrial release conditions went beyond those protections afforded to the wife by way of the abuse prevention order, in that they included a "stay away no contact" order and that, as a result, the extension of the abuse prevention order would be redundant. Due to those "even stronger" protective conditions (as characterized by husband's counsel), as well as the fact that DCF was involved, the trial judge refused to extend the restraining order.

The Appeals Court held that the husband's pretrial release conditions were an improper basis for the denial of an abuse prevention order. It noted that the standard for the issuance and extension of an abuse prevention order was whether the plaintiff demonstrated a reasonable fear of imminent physical harm. The Court discussed its reasoning in concluding that the conditions of pretrial release and the involvement of DCF were inadequate substitutions for the protection of an abuse prevention order, noting that the penalty for the violation of an abuse prevention order provides for up to two-and-a-half years in a House of Correction. Conversely, DCF does not have the authority to incarcerate and a violation of pretrial release conditions only carries an initial ninety-day incarceration period, and is only imposed upon a showing that there are no other means (absent incarceration) to reasonably assure the other party's safety.

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