Implications for Firearms Owners Served with 209A Restraining Orders

Immediately upon being served with a 209A restraining order, M.G.L. c. 209A § 3B requires that the subject of the order surrender their License to Carry Firearms and/or Firearms Identification Card, all “firearms, rifles, shotguns, machine guns and ammunition which he then controls, owns or possesses.” Law enforcement officers, upon service of the restraining order, shall immediately confiscate all licenses, firearms and ammunition. Note that the requirement to surrender all firearms and licenses must be made immediately upon service of the order, even if you intend to oppose the issuance of the order at a subsequent hearing.

What happens to the seized firearms?

Weapons seized as a result of a restraining order by the police may only be thereafter transferred to a licensed dealer by the police department. The police department may not release the firearms back to you (even should the order be ultimately vacated); nor may they release the firearms to any licensed individual – only a federally-licensed firearm dealer. M.G.L. c. 209A § 3B is very specific as to who the firearms may be transferred to after seizure. The restraining order statute requires that only a licensed dealer may take custody of the firearms, and act as a transfer agent when your carry rights have been restored.

This means that even if the order is vacated after a hearing, you must first request that the Chief of Police or other licensing authority reinstate your license to carry firearms or firearms identification card. Once your license has been reinstated, you must then determine if the firearms are in the custody of the police, or if they have been transferred to a licensed dealer. If the firearms are still in the custody of the police, they must first be released to a licensed dealer, who may then transfer them back to the license holder (after they perform the appropriate check to ensure that you are properly licensed).

What if your employment requires the use of a firearm (such as a police officer)?

If the restraining order was initially obtained without a hearing, and you are required to carry or possess a firearm as a condition of your employment, you may file an affidavit demonstrating such an employment requirement, and request an expedited hearing on the restraining order. The Court will schedule a hearing, but only on the issue of the surrender and suspension of firearms pursuant to M.G.L. c. 209A.

How long does a firearms license stay suspended after the initial service of a restraining order?

If the restraining order is extended at the 10-day hearing, or at anytime thereafter following an extension or modification hearing, M.G.L. c. 209A § 3C requires that the individual’s license to carry firearms remains suspended (and any firearms may not be returned or possessed) for as long as the restraining order remains in place. As such, any firearms or firearms license may not be returned until the 209A order is vacated.

However, although an individual who was the subject of the now-vacated 209A restraining order may petition the Chief of Police to reinstate of a license to carry firearms, the Police Chief is not under obligation to do so. In Howard v. Chief of Police of Wakefield et al. (59 Mass. App. Ct. 901, 2003) the Appeals Court upheld the Police Chief’s determination that a 209A Abuse Prevention Order issued by a Judge, after a hearing, represents a finding that the individual poses a threat of violence, and that the expiration of the 209A does not erase the fact that the individual has a history of being found post a threat of violence. Since the chief has broad discretion to determine the suitability of an individual to possess a firearms license, the Chief or other licensing authority may consider this information as relevant to his determination as to reinstate the license.

Being the subject of a 209A Restraining Order may cause you to lose your firearms rights for life, and has significant implications as to your property rights, as well. Some licensing authorities may be willing to extend licenses to individuals who are no longer the subject of an abuse prevention order, but it is at the discretion of the licensing officer. Additionally, with even a small firearms collection the value of the confiscated weapons could be thousands of dollars, and larger collections could be valued at hundreds of thousands of dollars. The legal requirement to surrender such property immediately upon the issuance of a restraining order could have significant financial consequences. It is important that, if you are served with a restraining order, you immediately contact an attorney to both protect your rights, your property, and ensure compliance with the law.

For more information about firearms licensing laws, applications, renewals and appeals visit our firearms website.

What's in a Name? - The Problem with Labeling Parents "Custodial Parent" vs. "Visiting Parent"

It's difficult for people who haven't been involved in a divorce case to understand why divorcing spouses can be so mean to each other, especially when children are involved. But the emotions that couples experience when going through a divorce can be like riding a roller coaster. Many experts describe the emotional process of dealing with a divorce as similar to that of dealing with the death of a loved one, including all the same stages of grief: denial, anger, bargaining, depression and acceptance. When divorces involve children, these emotions are amplified by parent's fears that they will "lose" their children.

This is why the labels of "custodial parent" and "visiting parent" carry so much baggage with them, and can make people fight when they don't need to. When it comes to figuring out the best way that both parents can remain involved in the lives of their children, we believe it is more important for clients to focus on what the actual plan is, rather than the labels. We recently wrote a post about Parenting Plans, that focused on how parents can come up with a Parenting Plan as part of their divorce case.

But it is also important to know what significance the labels have. As the court moves away from the "custody vs. visitation" model towards a "parenting plan" model much of the old significance to these labels has been drained from them. For example, the Child Support Guidelines use to simply specify that the custodial parent pays the non-custodial parent the figure calculated by applying the Child Support Guidelines Worksheet. However, the new Massachusetts Child Support Guidelines clarify as follows:

"These guidelines recognize that children should enjoy parenting time with both parents to the greatest extent possible consistent with the children’s best interests.

These guidelines are based upon the child(ren) having a primary residence with one parent and spending approximately one­third of the time with the other parent.

Where two parents share equally, or approximately equally, the financial responsibility and parenting time for the child(ren), the child support shall be determined by calculating the child support guidelines twice, first with one parent as­ the Recipient, and second with the other parent as the Recipient. The difference in the calculations shall be paid to the parent with the lower weekly support amount..."

This clarification obviates the need for using the label of custodial parent, because the amount of time the child spends with each parent in the parenting plan will define how we apply the guidelines.

Likewise, the title of "sole custody" vs. "joint custody" used to have definite legal significance regarding what standard would be applied when a parent wanted to remove the child from the Commonwealth and move to another state. The differences in the applicable standards was the weight that should be given to the benefit of the relocation to the parent seeking to move. In the case of "sole custody" the benefit to the relocating parent is given so much weight that it is a difficult burden to overcome, and in many cases relocation is allowed. In the case of "joint custody" the benefit to the relocating parent is not given as much weight, and the disruption to the non-moving parent's parenting time will often outweigh the benefits of the move, and so in many cases relocation is not allowed.

But recent court decisions have cut back on the significance of the labels in these cases as well, focusing more on the actual parenting time spent with the children by each parent to determine whether the children were truly living equally with both parents or not. In Altomare v. Altomare 77 Mass. App. Ct. 601 (2010) the Court held that the parenting time arrangement, which involved significantly more time with the Mother, was more important than the label of shared physical custody. The Court in Altomare looked past the "shared physical custody" label and indicated they would treat the case as a "sole physical custody" case for purpose of applying a removal standard, because that was what the parenting time actually reflected. See also Katzman v. Healy, Appeals Court of Massachusetts.No. 09-P-2341. (2010) in which the Appeals Court overturned a trial judge who, according to the appeals court, mixed the standards together in the case where the Mother's label was "sole physical" custodian, but also where Mother had significantly more parenting time with the children.

Because the history of these cases is important, we do not mean to imply or express the opinion that the labels have lost all legal meaning. However, it is clear that the Court is leaning away from these labels and towards an analysis of how the actual parenting time impacts the social, emotional and financial effects on children and their parents. If you are mired in a fight over labels, you should consider re-focusing your attention on the best Parenting Plan for your family and let the realities of that plan inform these other issues, rather than letting the cart lead the horse.