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A Chapter 209A abuse-prevention order issued against the father of an unborn child could be extended over the objections of the mother who sought the order in the first place, a state District Court judge has ruled.

The mother had requested that the order be modified to allow the father to contact her about doctors' appointments and other matters related to the pregnancy. The District Court denied the request.

In a motion for reconsideration, the father argued that, under the court system's judicial practice guidelines, a plaintiff is entitled to terminate a 209A order regardless of the reason given or the presence of children, and thus the judge had no authority to override the mother's wishes.

But Judge Patrick A. Fox disagreed.

"The Guidelines [do indeed] suggest that a court should not deny a plaintiff's request to vacate or modify an abuse prevention order for the sole reason that the court concluded her decision was unwise," wrote Fox, denying the father's motion to reconsider the extension. "Recognizing the protective purpose of G.L.c. 209A, I conclude there is no valid reason to deny protection here simply because the child in this case is yet to be born."

The three-page decision is Lareau v. Klash, Lawyers Weekly No. 16-012-09.

Best interests

Athol lawyer Neil A. Smith, who represented the defendant, said a judge's authority to deny a restraining order modification on the basis of an unborn child is an issue of first impression in Massachusetts.

"I'm not familiar with any court doing this and simply do not believe that a judge has the authority to afford this kind of protection to an unborn child," he said. "There was no one else left to issue the restraining order on behalf of, but the judge creatively said he was going to do it on behalf of the unborn child."

If the plaintiff had not been pregnant at the time she requested the order be vacated, Smith said the judge would have complied. But Smith said Fox told the defendant he would consider vacating the order only after the child was born and the Department of Children and Families had been contacted.

Smith said he represents the defendant in the assault and battery case, which formed the basis of the restraining order. That case is slated for trial on Aug. 27.

Julie R. Hess, a family-law practitioner at Boston's Denner Pellegrino who was not involved in the case, said the court had a "sound basis" for extending the 209A order.

"The case seems to follow a firmly rooted standard in our judiciary - the ‘best interest of the child' standard," she said, pointing out that Probate & Family Court judges, using the same reasoning, will often refuse to approve custody and visitation agreements that parents have made with one another.

Hess said it is also noteworthy that the court did not inquire as to the age of the fetus in the case, given that caselaw tends to support only viable fetuses in terms of protections for unborn children.

"The court possibly thought an inquiry as to viability was moot since the mother was keeping the child rather than aborting it," she said. "However, that distinction ... is not one that has been made by the courts, to my knowledge. Rather, the distinction is viability of the fetus at the time of the issue at hand, not whether the child will, in fact, come to term or whether the mother plans on keeping the child."

While the decision has no precedential value, "the court has possibly created an appellate issue," she said.