1:00 Commentary
Guidelines for Judicial Practice
Abuse Prevention Proceedings

1:00 COMMENTARY

The Abuse Prevention Act, G.L. c. 209A, is one of the most sensitive and potentially volatile areas of Trial Court jurisdiction. A copy of G.L. c. 209A and related statutes appear in Appendix A. These Guidelines are intended to provide an analysis of the legal requirements of that law and to recommend specific interpretations in the many areas where the statute is vague or silent. The Guidelines also address the many unique practical, procedural and policy issues presented by the Abuse Prevention Act.

Although the Guidelines apply to c. 209A proceedings in four Court Departments, some of the Guidelines are not applicable to one or more of the Departments because of the differences in jurisdiction on related matters. The following Guidelines apply only to the District Court, Boston Municipal Court and the Superior Court: 8:05, 8:06, 8:07, 8:08, 8:09, 8:10, 8:11, 8:12, 8:13 and 8:14. Guideline 8:01 applies only to the District Court and the Boston Municipal Court. Guidelines 8:04 and 8:09 apply to the District Court, the Boston Municipal Court and to some extent to the Superior Court. Guidelines 12:00 through 12:14 are directed to the Probate and Family Court, but Guidelines 12:00 through 12:04 should inform related proceedings in the District Court, Boston Municipal Court and Superior Court. Nonetheless, all Departments are encouraged to be aware of these Guidelines to promote a coordinated response by the Trial Court to domestic violence cases.

In Crenshaw v. Macklin, 430 Mass. 633, 635(2000), the SJC affirmed a court's authority to issue a permanent order following a "renewal hearing". As a further clarification, the Court stated that its comments on the duration of c. 209A orders in dicta in Champagne v. Champagne, 429 Mass. 324 (1999) "... should be read to conform to our ruling here." Crenshaw v. Macklin, 430 Mass. at 636 (2000). [Back]

The protective purpose of proceedings under c. 209A can be jeopardized if the court attempts to resolve any perceived underlying conflict or problem in the relationship between the parties. While it might seem desirable for the court to play what it believes to be a helpful and constructive role, this is not the purpose of the proceedings. The plaintiff has a right to invoke the court's protective authority against abuse. More important, any attempt to explore the nature of the underlying relationship between the parties can inappropriately shift the focus of the proceedings away from the issue of protection. Such a shift of focus can weaken the plaintiff's resolve to seek protection and, if a defendant is a batterer, provide a context for a defendant's denial, domination and control. If the plaintiff desires counseling, it is available from professionals who are trained to provide it. The issues for the court before which a plaintiff brings a c. 209A complaint are limited in scope: is protection under the law warranted and, if so, what form should that protection take?

Judges, Clerk-Magistrates, Registers and other court personnel should be aware that these proceedings often take place in times of great turmoil in the parties' lives. Both plaintiffs and defendants sometimes come to court dressed differently from other litigants, or even dressed inappropriately, and they may display emotions infrequently observed in a courtroom. While overt disrespect for the court should not be tolerated, some sensitivity is called for. See Commonwealth v. Contach, 47 Mass. App. Ct. 247 (1999)(regarding the use of contempt power in a restraining order hearing and citing this commentary on the need for sensitivity in such matters). No one seeking the court's protection from abuse, or an opportunity to respond to a c. 209A order, should be barred from the courtroom because of what may be deemed inappropriate dress (e.g. shorts or tank tops or other dress permitted on the public street, but sometimes, perhaps, not permitted in the courtroom.)

See also Guidelines 4:05, Reconciliation; 6:01, Referral for Treatment or Supportive Services; 10:00, Civil Commitment for Alcoholism or Other Substance Abuse and 12:05, Proceedings in Probate and Family Court: Pre-Trial Conferences and Other Court Proceedings. [Back]

As recognition of its scope and nature has increased, the issue of family violence has become the focus of legitimate and increasing public concern. However, that concern must not be permitted to affect or diminish the court's responsibility to remain neutral, to protect the rights of the accused in each case, and to address each case individually on its own merits. "Whether a defendant's constitutional rights have been violated [in a G.L. c. 209A proceeding] will depend on the fairness of a particular proceeding." Frizado v. Frizado, 420 Mass. 592, 598 (1995).

Particular care is warranted regarding the following:

(A) The court should be satisfied that it has jurisdiction, and that the facts alleged constitute abuse, or a substantial likelihood of abuse, separately from, and prior to, considering the appropriate terms of the requested order. This is particularly important at ex parte hearings. See Guidelines 3:02, 3:03 and 3:07.

(B) When possible, (and when effective service will not present a problem,) the court should limit the duration of an ex parte order to fewer than the maximum ten days in order to minimize the deprivation of the defendant's rights prior to notice and an opportunity to be heard. See Guidelines 3:00 and 5:00.

(C) The court should require evidence of notice before issuing an order for longer than ten court business days. See Guideline 5:05.

(D) In each proceeding, the court should apply the proper burden of proof by requiring the plaintiff to prove, by a preponderance of the credible evidence, that the requested relief is legally warranted. See Guidelines 3:06, 5:03, 5:04.

(E) In contested proceedings, although the court should not permit harassment or intimidation of either party, each party must be given a meaningful opportunity to challenge the other's evidence. See Guideline 5:01.

(F) In determining whether to exercise jurisdiction under the emergency exception to the Uniform Child Custody Jurisdiction Act (G.L. c. 209B, § 2(a)(3)) in an interstate custody dispute, a judge must, at minimum, hear argument of both parties, and review affidavits from both parents. Orchard v. Orchard, 43 Mass. App. Ct. 775, 781 n.11 (1997), citing Umina v. Malbica, 27 Mass. App. Ct. 351, 360 n.11 (1997). [Back]

With the exception of the Probate and Family Court Department, where the Massachusetts Rules of Domestic Relations Procedure specifically apply to c. 209A actions, none of the Departments of the Trial Court with jurisdiction over c. 209A proceedings has formal procedural rules which specifically govern c. 209A proceedings. The statute, c. 209A, sets out procedural requirements which must be followed. In addition, the more general Rules of Civil Procedure may be applied in the District Court, Boston Municipal Court and Superior Court, where the provisions of c. 209A itself leave a procedural question unanswered.

Discovery is not mentioned in G.L. c. 209A and should be considered a matter of the court's discretion, to be allowed only when determined by the court to be necessary for a particular purpose. Discovery should not be ordered if the information would be merely "relevant" or "interesting." The test should be one of necessity. Generally, the testimony of the parties and any witnesses will provide an adequate basis for the adjudication of domestic abuse cases and, when warranted, the issuance of protective orders. [Back]

The opportunity for a mutual exchange of appropriate information and discussion of concerns with advocacy groups should not be avoided. Such contact does not jeopardize the court's fundamental role as neutral finder of fact as long as inappropriate substantive matters and individual pending cases are not discussed. See Guideline 2:08, Role of Advocates in Assisting Parties; Guideline 3:09, Role of Advocates at Ex Parte Hearing; and Guideline 5:02, Role of Advocates at an After Notice Hearing.

Judges, in particular the court's First Justice, Regional Administrative Justice or Chief Justice, should also consider broadening such meetings to include court personnel who are regularly involved in c. 209A cases, as well as prosecutors, police representatives, victim-witness advocates and representatives of the bar involved in domestic violence civil and criminal cases. Some courts have found that regular, periodic meetings of such groups, commonly referred to as "round tables", can be very productive. Participation by judges in such meetings should, of course, be guided by appropriate provisions of the code of judicial conduct.

The Supreme Judicial Court Committee on Judicial Ethics has issued an opinion letter on the subject of participation by judges in meetings with advocacy groups. Supreme Judicial Court Committee on Judicial Ethics, Opinion 98-16, (Sept. 15, 1998), at Appendix A-7. The opinion letter provides specific guidelines under which the propriety of judicial participation in meetings of advocacy groups should be assessed. Providing essentially a two part test, the Committee indicated that it would focus on a consideration of the specific subject matter discussed at the meetings and the frequency of the judge's participation in those meetings. Id. For example, the Committee determined that judicial participation in meetings at which procedural issues are addressed, such as logistical concerns regarding the processing of petitions, is not prejudicial to the interests of defendants and any perception of partiality would be mitigated by the beneficial nature of such meetings. Id. Conversely, the Committee advocated that judges "[avoid] repeated attendance at meetings when substantive issues are to be discussed in a one-sided fashion." CJE Opinion 98-16, p.3. The risk of the appearance of impartiality resulting from limited judicial participation in these types of meetings may be mitigated by providing notice to the bar of the judge's participation in such meetings or by requesting that the meetings be scheduled to address issues relating to court administration at the start of the meeting, allowing the judge to participate only in those more neutral matters. Id.

The effectiveness of court procedures can be improved through open and constructive dialogue with all those involved. [Back]

Plaintiffs' safety is the most important aspect of the confidentiality requirements in G.L. c. 209A proceedings. In every case, section 8 prohibits public access to certain categories of information about the plaintiff. Section 8 also permits the plaintiff to request that the plaintiff's residential address and workplace address be withheld from the order so as to be inaccessible to the defendant and the defendant's attorney.

All confidential portions of the records shall be accessible at all reasonable times to the plaintiff and plaintiff's attorney, to others specifically authorized by the plaintiff to obtain this information and, if such access is necessary in the performance of their duties, to prosecutors, victim-witness advocates, domestic violence victim counselors, sexual assault counselors, and law enforcement officers.

Before any confidential information is provided to a person authorized to receive it pursuant to c. 209A, § 8, the case file should be carefully reviewed to determine if the information has also been impounded. See Amendments to the confidentiality provisions of c.209A, Memorandum, Honorable Barbara A. Dortch-Okara, Chief Justice for Administration and Management, November 10, 2000 at Appendix B.

The plaintiff may also request that other information be impounded, that is, kept confidential from the general public by court order.

Except as noted above, judicial records of G.L. c. 209A proceedings are presumptively open to the public. The Boston Herald, Inc. v. Richard J. Sharpe, 432 Mass. 593,608 (2000).

It should be noted that pursuant to G.L. c. 6, § 172D, added by St. 1998, c. 64 § 1, child support enforcement agencies may be granted access to records contained in the statewide Registry of Civil Restraining Orders. [Back]

The statute clearly provides for minor plaintiffs and defendants in c. 209A actions, and makes no reference to their lack of capacity to sue or be sued in civil court. In light of this, and of the protective purpose of the statute, courts should not refuse needed protection solely on the technical ground that a minor plaintiff is not accompanied by an adult. Nor should the court necessarily defer action while seeking the presence of a parent or guardian. However, there may be instances aside from the allegations of abuse, where the age of the plaintiff, or the plaintiff's credibility, or other factors, lead the judge to refuse to issue an order, or to delay the issuance of an order until a parent or responsible adult can be located and brought to court. In extreme situations, such an adult may be a representative of the Department of Social Services.

The statute might be read to limit relief against a minor defendant. Section 3 provides that the court may order the defendant to refrain from abusing the plaintiff and to refrain from contacting the plaintiff, "whether the defendant is an adult or minor." However, subsection (c), which addresses orders to vacate and stay away from dwellings and workplaces, does not contain that language. Thus, the Legislature may have intended that a minor not be subject to vacate orders. On the other hand, it is clear that the protective purpose of the statute is to be read broadly, and that available relief is not limited to that specifically listed in section 3. Thus, some judges feel that such orders may issue.

However, a judge who orders a minor defendant to vacate his or her residence should take care that appropriate provision is made for the minor's safety. Depending upon the situation, care and protection, child in need of services, mental health or delinquency proceedings may have the effect of providing the minor defendant with a safe place to stay. See Guidelines 10:03, 10:05 and 10:06. [Back]

Chapter 221C of the General Laws sets out a process by which interpreters are to be made available to every non-English speaker in a "legal proceeding." This chapter appears to apply to civil, as well as criminal, proceedings, and to everyone participating, whether as a witness or a party. The procedure for requesting interpreters from the Office of Court Interpreter Services is set forth at Appendix E. See also, Fiscal Year 1999 - Memo #10, Honorable John J. Irwin, Jr., Chief Justice for Administration and Management, September 24, 1998.

The statutory process will usually be impracticable for c. 209A ex parte hearings, however, and the court may have to improvise an appropriate procedure. Some caveats apply. It is crucial that the court be able to understand the parties well enough to decide the facts and to assess the degree of danger involved; it is equally crucial that the parties understand the order issued and the necessary steps which he or she must take to promote safety. Further, if the defendant is present at the hearing, it is crucial that the defendant understand the terms and conditions of the order issued, including what the defendant is required to do and/or prohibited from doing. Minor children should not be asked to interpret for their parents unless there is absolutely no alternative. Neither party should ever interpret for the other. [Back]