NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1196
C.H.
vs.
B.F.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, C.H., was granted a protective order under
G. L. c. 209A, § 3, against her adult son, B.F (defendant). The
plaintiff also requested a stay-away and no-contact order for
her fourteen year old daughter, T.F., the defendant's sister,
which a judge of the District Court granted. The defendant did
not object to the issuance of the restraining order by the
plaintiff, nor does he on appeal. Instead, he claims that the
judge erred in issuing the order with respect to his sister
because there was no evidence that he had threatened or abused
her. We affirm.
Background. On June 25, 2024, the plaintiff applied for an
ex parte restraining order pursuant to G. L. c. 209A, § 3, against her twenty two year old son, B.F. At the ex parte
hearing, the plaintiff testified that she and the defendant had
a great relationship until she confronted him about an
inappropriate Facebook post. In February 2024, on the day of a
mass shooting, the plaintiff became aware that the defendant
posted a picture of his sister, T.F., who was thirteen years old
at that time, holding what appeared to be a gun. The post was
captioned "Gangsta Foxes." According to the plaintiff, after
the defendant was told to delete the post, he reacted by sending
her vulgar text messages in which, among other things, he
threatened to kill her and "choke the life out" of her husband
while she and other family members watched. The judge issued
the ex parte order, requiring the defendant to stay away from
and have no contact with the plaintiff. He also ordered the
defendant to have no contact with and stay at least 100 yards
away from T.F. unless authorized by the court.
At the two-party hearing, the defendant was represented by
counsel. The plaintiff testified that, given the defendant's
angry and threatening text messages, she was concerned for her
safety; she also expressed, albeit hesitantly, some concern for
the safety of T.F. On cross-examination, the plaintiff agreed
that the defendant had maintained a sibling relationship with
T.F. and that, in the past six years, the defendant had never
2 harmed or threatened to harm her. When questioned about whether
the gun that T.F. was holding in the Facebook post was a BB gun,
the plaintiff testified that she had no idea if it was a BB gun,
but that it looked like a handgun to her. Finally, the
plaintiff agreed that, between February (when the relationship
between the plaintiff and defendant deteriorated) and June 2024,
the defendant and T.F. had continued to see one another and that
there were no issues between the two.
Discussion. We review the extension of a restraining order
for an abuse of discretion or other error of law. E.C.O. v.
Compton, 464 Mass. 558, 561-562 (2013). An abuse of discretion
occurs when "the judge made a clear error of judgment in
weighing the factors relevant to the decision, . . . such that
the decision falls outside of the range of reasonable
alternatives." Constance C. v. Raymond R., 101 Mass. App. Ct.
390, 394 (2022), quoting L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014). "We accord the credibility determinations of
the judge who 'heard the testimony of the parties . . . [and]
observed their demeanor,' the utmost deference." Ginsberg v.
Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006), quoting Pike v.
Maguire, 47 Mass. App. Ct. 929, 929 (1999).
A plaintiff seeking to extend a restraining order bears the
burden of establishing, "by a preponderance of the evidence,
3 that the defendant has caused or attempted to cause physical
harm, committed a sexual assault, or placed the plaintiff in
reasonable fear of imminent serious physical harm." MacDonald
v. Caruso, 467 Mass. 382, 386 (2014). See G. L. c. 209A, § 1.
A judge should consider "the totality of the conditions that
exist at the time that the plaintiff seeks the extension, viewed
in the light of the initial abuse prevention order." Iamele v.
Asselin, 444 Mass. 734, 741 (2005).
A person suffering from abuse may file a complaint
requesting protection from such abuse and, as remedies from the
abuse, may inter alia, request that the defendant be ordered to
do or to refrain from doing the following: refrain from abusing
the plaintiff, stay away or have no contact with the plaintiff,
stay away from the plaintiff's place of employment, stay away or
refrain from abusing or contacting the plaintiff's minor
children unless such contact is authorized by the court, or any
other order necessary to protect the plaintiff from abuse. See
G. L. c. 209A, § 3. See also Guidelines for Judicial Practice:
Abuse Prevention Proceedings (Guidelines) § 6:00 (h) (Oct.
2021).
Here, the plaintiff sought protection under G. L. c. 209A
on the basis that the defendant had placed her in fear of
imminent serious physical harm. The judge correctly found that
4 the plaintiff had met her burden of proof and ordered the
defendant not to abuse the plaintiff. In addition, the
plaintiff requested, and the judge issued an order that the
defendant stay away and have no contact with the plaintiff and
T.F. The result of the no-contact and stay-away order is that
it prohibits the defendant from having contact with T.F. The
defendant argues that this was improper because such an order
should be justified by separate evidence of abuse of the minor
child. We disagree.
We do agree with the defendant that, in a restraining order
matter involving a defendant who is the parent of a minor child,
the plaintiff must establish a basis for requesting a no-contact
or stay-away order with respect to the child. See Schechter v.
Schechter, 88 Mass. App. Ct. 239, 247 (2015) (recognizing that a
parent has a "fundamental interest in their relationship with
their children that is constitutionally protected" [citation
omitted]). In Smith v. Joyce, 421 Mass. 520 (1995), the
plaintiff sought a restraining order against the defendant, her
former husband and father of her two children. The court held
that while the evidence supported a restraining order for the
plaintiff, "[t]here [was] no evidence that warranted an order
barring the defendant from contact with his sons." Id. at 523.
In the case of a stay-away and no-contact order for a
5 defendant's own child, a judge should "consider[] the
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1196
C.H.
vs.
B.F.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, C.H., was granted a protective order under
G. L. c. 209A, § 3, against her adult son, B.F (defendant). The
plaintiff also requested a stay-away and no-contact order for
her fourteen year old daughter, T.F., the defendant's sister,
which a judge of the District Court granted. The defendant did
not object to the issuance of the restraining order by the
plaintiff, nor does he on appeal. Instead, he claims that the
judge erred in issuing the order with respect to his sister
because there was no evidence that he had threatened or abused
her. We affirm.
Background. On June 25, 2024, the plaintiff applied for an
ex parte restraining order pursuant to G. L. c. 209A, § 3, against her twenty two year old son, B.F. At the ex parte
hearing, the plaintiff testified that she and the defendant had
a great relationship until she confronted him about an
inappropriate Facebook post. In February 2024, on the day of a
mass shooting, the plaintiff became aware that the defendant
posted a picture of his sister, T.F., who was thirteen years old
at that time, holding what appeared to be a gun. The post was
captioned "Gangsta Foxes." According to the plaintiff, after
the defendant was told to delete the post, he reacted by sending
her vulgar text messages in which, among other things, he
threatened to kill her and "choke the life out" of her husband
while she and other family members watched. The judge issued
the ex parte order, requiring the defendant to stay away from
and have no contact with the plaintiff. He also ordered the
defendant to have no contact with and stay at least 100 yards
away from T.F. unless authorized by the court.
At the two-party hearing, the defendant was represented by
counsel. The plaintiff testified that, given the defendant's
angry and threatening text messages, she was concerned for her
safety; she also expressed, albeit hesitantly, some concern for
the safety of T.F. On cross-examination, the plaintiff agreed
that the defendant had maintained a sibling relationship with
T.F. and that, in the past six years, the defendant had never
2 harmed or threatened to harm her. When questioned about whether
the gun that T.F. was holding in the Facebook post was a BB gun,
the plaintiff testified that she had no idea if it was a BB gun,
but that it looked like a handgun to her. Finally, the
plaintiff agreed that, between February (when the relationship
between the plaintiff and defendant deteriorated) and June 2024,
the defendant and T.F. had continued to see one another and that
there were no issues between the two.
Discussion. We review the extension of a restraining order
for an abuse of discretion or other error of law. E.C.O. v.
Compton, 464 Mass. 558, 561-562 (2013). An abuse of discretion
occurs when "the judge made a clear error of judgment in
weighing the factors relevant to the decision, . . . such that
the decision falls outside of the range of reasonable
alternatives." Constance C. v. Raymond R., 101 Mass. App. Ct.
390, 394 (2022), quoting L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014). "We accord the credibility determinations of
the judge who 'heard the testimony of the parties . . . [and]
observed their demeanor,' the utmost deference." Ginsberg v.
Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006), quoting Pike v.
Maguire, 47 Mass. App. Ct. 929, 929 (1999).
A plaintiff seeking to extend a restraining order bears the
burden of establishing, "by a preponderance of the evidence,
3 that the defendant has caused or attempted to cause physical
harm, committed a sexual assault, or placed the plaintiff in
reasonable fear of imminent serious physical harm." MacDonald
v. Caruso, 467 Mass. 382, 386 (2014). See G. L. c. 209A, § 1.
A judge should consider "the totality of the conditions that
exist at the time that the plaintiff seeks the extension, viewed
in the light of the initial abuse prevention order." Iamele v.
Asselin, 444 Mass. 734, 741 (2005).
A person suffering from abuse may file a complaint
requesting protection from such abuse and, as remedies from the
abuse, may inter alia, request that the defendant be ordered to
do or to refrain from doing the following: refrain from abusing
the plaintiff, stay away or have no contact with the plaintiff,
stay away from the plaintiff's place of employment, stay away or
refrain from abusing or contacting the plaintiff's minor
children unless such contact is authorized by the court, or any
other order necessary to protect the plaintiff from abuse. See
G. L. c. 209A, § 3. See also Guidelines for Judicial Practice:
Abuse Prevention Proceedings (Guidelines) § 6:00 (h) (Oct.
2021).
Here, the plaintiff sought protection under G. L. c. 209A
on the basis that the defendant had placed her in fear of
imminent serious physical harm. The judge correctly found that
4 the plaintiff had met her burden of proof and ordered the
defendant not to abuse the plaintiff. In addition, the
plaintiff requested, and the judge issued an order that the
defendant stay away and have no contact with the plaintiff and
T.F. The result of the no-contact and stay-away order is that
it prohibits the defendant from having contact with T.F. The
defendant argues that this was improper because such an order
should be justified by separate evidence of abuse of the minor
child. We disagree.
We do agree with the defendant that, in a restraining order
matter involving a defendant who is the parent of a minor child,
the plaintiff must establish a basis for requesting a no-contact
or stay-away order with respect to the child. See Schechter v.
Schechter, 88 Mass. App. Ct. 239, 247 (2015) (recognizing that a
parent has a "fundamental interest in their relationship with
their children that is constitutionally protected" [citation
omitted]). In Smith v. Joyce, 421 Mass. 520 (1995), the
plaintiff sought a restraining order against the defendant, her
former husband and father of her two children. The court held
that while the evidence supported a restraining order for the
plaintiff, "[t]here [was] no evidence that warranted an order
barring the defendant from contact with his sons." Id. at 523.
In the case of a stay-away and no-contact order for a
5 defendant's own child, a judge should "consider[] the
defendant's relations with [the child] apart from the
plaintiff's request that the defendant stay away." Id. If a
restraining order requires a defendant to "stay away from and
have no contact with his or her minor children, there must be
independent support for the order." Id.
Here, however, the same independent support analysis is not
required. The defendant is a sibling and therefore lacks the
constitutionally protected liberty interest of a parent with
respect to the minor child. See Adoption of Pierce, 58 Mass.
App. Ct. 342, 347 (2003), citing Adoption of Hugo, 428 Mass.
219, 230-231 (1998). In instances where the defendant is not
the child's parent, the parent need not show independent
evidence of abuse, or a threat of abuse, of the minor child.
The judge merely needs to be satisfied that an order to stay
away from the minor child is necessary to protect the plaintiff
from abuse. Cf. Guidelines § 4:03A commentary ("The plaintiff
must establish a basis for requesting that the court order no
contact with the defendant's minor child[ren] . . . If the
plaintiff's child[ren], or the child[ren] in the plaintiff's
custody, are not the defendant's child[ren], there need be no
such showing").
6 This result flows in part from the fact that the state
gives great deference to parents where their children are
concerned. Our law presumes that fit parents act in furtherance
of the welfare and best interests of their children. See Sayre
v. Aisner, 51 Mass. App. Ct. 794, 799 n.8 (2001); Petition of
the Dep't of Pub. Welfare to Dispense with Consent to Adoption,
383 Mass. 573, 587–589 (1981). Furthermore, this case is
comparable to other situations in which independent evidence is
not required in order to effectuate the safe-haven purpose of
the statute. Remedies such as stay-away orders from a
workplace, a particular school, or the plaintiff's residence are
necessary to provide full relief to a plaintiff, and they
generally apply even when the plaintiff is not present at those
places. See Guidelines § 4:01("[w]hen justified by the facts,
the court has authority to order a defendant to stay away from a
particular school or job site, even if the defendant attends the
school or works at the same location"). See also Commonwealth
v. Habenstreit, 57 Mass. App. Ct. 785, 787 (2003) (2003)
(interpreting order to apply only when victim physically present
would "encourage a defendant to keep himself or herself informed
about a protected person's schedule, a result that would be
contrary to the intent of the order itself"). Similarly,
because parents are so closely associated with their minor
7 children, allowing a defendant contact with a minor child absent
an independent showing of abuse of that child would increase the
chance for contact between the plaintiff and defendant, and the
potential for harm. In the absence of a parent's fundamental
right to contact their children, the statutory scheme places the
interests of the threatened plaintiff, including her interest in
exercising her judgment to further the best interest of her
minor child, above those of non-parent defendants.
Here, the undisputed facts establish that the defendant was
with T.F. and then posted a picture on Facebook showing T.F. in
possession of what appeared to be a handgun. Then, when the
plaintiff and her husband expressed displeasure and told the
defendant to take down the post, the defendant responded by
threatening to kill them in the presence of other family
members. The plaintiff testified that the defendant had a
history of anger issues, that he had been "violent" with her in
the past, and that, given his current mental state, she didn't
think that the defendant should be near her, her husband or T.F.
At the hearing, the judge specifically asked the plaintiff
whether she believed that the defendant would harm T.F. The
plaintiff expressed concern for the defendant's mental health
and the need for him to obtain treatment, and due to the
defendant's erratic and unpredictable behavior, the plaintiff
8 expressed some concern for the welfare of T.F. Based on this
evidence, we find no error of law or abuse of discretion in the
judge's order that the defendant stay away and have no contact
with T.F.
Order extending G. L. c. 209A order, entered September 9, 2024, affirmed.
By the Court (Sacks, Englander & Walsh, JJ.1),
Clerk
Entered: August 1, 2025.
1 The panelists are listed in order of seniority.