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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 99450
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My daughter who was 22 at the time took out a 10 day

Customer Question

My daughter who was 22 at the time took out a 10 day temporary restraining order against me in October of 2015. She tried serving me at an address I no longer lived at. I was a day and a half to appear in front of judge. the judge heard both parties and vacated the order. So why hasn't this been removed from my record
Submitted: 2 months ago.
Category: Family Law
Expert:  Ely replied 2 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. Please clarify:

1) Did she file something called an abuse prevention order or a harassment prevention order, or, something else?

2) You stated that you have tried to remove/expunge it. What motion/pleading did you file (what was it called, exactly) and what was the result?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 2 months ago.
abuse order
motion for expungement and removal
Told I had to file with a judge who I believe no longer sits on the bench.
Result was I was told I have to prove fraud on the court
Expert:  Ely replied 2 months ago.

Thank you. Last question - did you do this with an attorney, or by yourself?

Customer: replied 2 months ago.
myself on advice of my attorney
Expert:  Ely replied 2 months ago.

Thank you. On this website, I do not always get to give good news, and this is one of these times.

It sounds like you filed a version of motion to seal otherwise known as motion for non-disclosure in some jurisdictions.

Essentially, there is NO RIGHT to have civil cases sealed. The Court will do so if it feels that the embarrassment and privacy overrides the public's right to open court records. This is VERY hard to prove and most requests are denied. Many courts take the standard that one cannot seal this unless fraud is indeed proven.

What does this mean in MA?

A fraud on the court occurs where . . . a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense . . . . That a plaintiff presents a claim that fails does not mean that she has perpetrated a fraud on the court” (citation omitted). Smith v. Jones, 67 Mass. App. Ct. 129, 137-138, 852 N.E.2d 670, 678 (2006). A fraud on the court requires “the most egregious conduct involving a corruption of the judicial process itself.” Sahin v. Sahin, 435 Mass. 396, 406 (2001). Perjury alone does not constitute a fraud on the court absent evidence that “the judicial process itself was corrupted.” Wojcicki v. Caragher, 447 Mass. 200, 210 (2006). *

*See HERE.

If the Judge did not believe that this reaches those levels, then the motion may be denied. I am sorry.

Now, someone in your situation does have the right to file a suit against her for defamation, intentional infliction of emotional distress, malicious prosecution, and/or abuse of process - for filing a false civil proceeding. We can discuss this if you'd like. Reply and let me know.

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