2:00 Commentary
Guidelines for Judicial Practice
Abuse Prevention Proceedings

2:00 COMMENTARY

The nature of c. 209A cases makes the selection of personnel to handle these actions particularly important. Personnel assignments should be made with an eye toward choosing people who will be sensitive to the often intimate nature of the issues involved, as well as to the plaintiffs' unfamiliarity with court procedures. Even in small courts, more than one person should be assigned to these cases to ensure that plaintiffs are assisted throughout the business day. Designated personnel should be thoroughly familiar with the procedures and forms involved in c. 209A cases and should receive regular training in the issues which these cases pose and in domestic violence issues generally. Such training should include a thorough review of these Guidelines. [Back]

The role of the Clerk-Magistrate's or the Register's office in processing c. 209A cases is to provide assistance, not to investigate. If it appears that the complaint is not one within the subject matter jurisdiction of c. 209A, or that the court does not have territorial jurisdiction over the action, the matter should be referred to the Clerk-Magistrate or an Assistant Clerk-Magistrate or, in the Probate and Family Court, to the Register or an Assistant Register. No attempt should be made to "screen out" such cases. See Guideline 2:05. Staff members should also be prepared to assist those seeking to file a certified copy of a protection order issued by other jurisdictions, as well as the requisite affidavit attesting to the validity and effectiveness of the other jurisdiction's order. See Guideline 14:00, regarding orders issued by other jurisdictions, and Appendices A, A-1, A-2, A-3 and A-4.

Particularly in courts where there are no advocacy services, staff members may also provide plaintiffs with information regarding community support services (e.g., shelters, advocacy groups, Al-Anon, etc.). In addition, courts should encourage the involvement of victim assistance personnel or advocates in assisting the plaintiff with the complaint form. See Guideline 2:08.

Finally, court personnel should also inform plaintiffs of the opportunity to seek a criminal complaint. See Guideline 2:11. [Back]

Despite the volume of activity in the typical Clerk-Magistrate's or Register's office, efforts must be made to ensure privacy for the plaintiff seeking relief under c. 209A. Where a separate room or area is not available, the discussion should be conducted so as to protect the plaintiff's privacy (e.g., perhaps at one end of the counter.)

When it is clear from the facts presented that the substantive dating relationship which provides jurisdiction is a gay or lesbian one, all court personnel should be sensitive to the fact that such relationships often are kept secret from other parties in the lives of both the plaintiff and the defendant. That is, a plaintiff who discloses a homosexual relationship in court documents or hearings may be revealing facts not known to his or her family, employer, co-workers, neighbors or landlord. Similarly, the filing of a c. 209A complaint may effectively "out" a defendant whose lifestyle has not previously been public knowledge. Available data indicate that violence in such relationships is substantially under reported-in part, because the difficulty of publicly revealing a non-traditional lifestyle seriously complicates the already considerable burden of discussing personal matters in court. Unmarried persons who live together may sometimes have similar concerns. While no special procedures are required or recommended, it is important that court personnel be aware of this difficulty and attempt to accommodate both plaintiffs and defendants in protecting their privacy as much as possible. [Back]

Court personnel who assist plaintiffs in completing the complaint form should be thoroughly familiar with that form and with the instructions for its use which are printed on the back of the form. It is important that the Confidential Information Form, at Appendix C, be completed in each case to ensure that "confidential" information is not provided to unauthorized persons.

Plaintiffs should not be discouraged from filing a complaint because they may lack some particular piece of information requested on the complaint form. The Guideline also recommends the use of the Defendant Information Form, Form FA-5, at Appendix C, to obtain information important for completing the record check and for locating the defendant for service, should an order issue. While not discouraging plaintiffs if they lack information, court personnel should stress the importance of providing as much of the information as possible, including the defendant's date of birth, Social Security number, mother's maiden name, father's name, and alias for the record check. For effective use of the Statewide Registry of Civil Restraining Orders and the Warrant Management System, it is essential that as much of this information as possible be obtained. See Guideline 2:10.

Equally important is information necessary for service of an order, including the location where the defendant can be found, his or her physical appearance, whether the defendant has access to weapons, etc. This inquiry must be conducted with sensitivity. While plaintiffs should not be discouraged from seeking the court's protection because they cannot provide some of this information, they should be apprised that law enforcement efforts to protect them are considerably hampered if the defendant cannot be accurately identified or served with notice. Some plaintiffs may be able to obtain additional information from home or other sources. In that case, the issuance of the order should not be delayed, but plaintiffs should be instructed to provide such information to the court or to the police department later in the day, but as soon as reasonably possible.

A copy of the Trial Court form that must be completed if the case involves the care and custody of one or more children is included at Appendix F.

See Guideline 3:00, regarding a complaint filed on behalf of a plaintiff seeking temporary relief who is unable to appear in court. [Back]

The advantage of obtaining a signed statement, or affidavit, is that factual allegations are then preserved in the case file. This can also obviate the need for the judge to question the plaintiff extensively when the matter comes before the court at the ex parte hearing, saving time and embarrassment. However, the plaintiff's failure or inability to complete such a statement cannot be grounds for denial of the right to file a complaint and obtain a hearing. See Guideline 2:05. Persons who are protected by an order issued by another jurisdiction who want to file a certified copy of it in a Massachusetts Court with jurisdiction are required to file an affidavit stating that the out of state order is currently in effect as written. See Appendix A, G.L. c. 209A, § 5A, Guideline 14:00 and Appendices A-1, A-2, A-3 and A-4. See also Guidelines 2:03 and 11:00, regarding relief sought by a plaintiff who is unable to appear in court because of a severe hardship due to the plaintiff's physical condition.

It is important that the plaintiff provide the court with a reason for ordering the defendant to have no-contact with the defendant's minor children. "If there is to be a G.L. c. 209A order that a defendant stay away from and have no-contact with his or her minor children, there must be independent support for the order." Smith v. Joyce, 421 Mass. 520, 523 (1995). Appropriate reasons may include (but are not limited to) a finding that the children themselves have been abused; that they have witnessed the defendant's abuse of the plaintiff and are therefore afraid of the defendant and would be harmed by seeing him or her; or that no visitation can be arranged with children in the plaintiff's custody without endangering the plaintiff. If the plaintiff's children, or the children in the plaintiff's custody, are not the defendant's children, there need be no such showing. [Back]

Courts should not authorize or permit a step in the abuse prevention procedure similar to the "screening out" process that can occur in the complaint application stage in criminal cases. The only circumstance in which court personnel should attempt to dissuade a plaintiff is when a clear jurisdictional defect is apparent. Any such issue regarding jurisdiction should be brought to the attention of the Clerk-Magistrate or an Assistant Clerk-Magistrate, or Register or Assistant Register in the Probate and Family Court, to ensure that it is correctly determined and explained, and that no "screening out" occurs. As stated above, if the plaintiff persists, the complaint form should be completed and the matter brought before the court for a formal ruling on jurisdiction. [Back]

It is not uncommon in domestic abuse cases for a plaintiff initially to seek relief, but then fail to follow up by not appearing at a subsequent hearing, by requesting to "drop" an order, or by failing to report violations of an order. Many complex dynamics contribute to a failure to follow through. These can include the plaintiff's need for financial support, a desire to reconcile with the defendant, coercion or intimidation by the defendant, family pressures, children's issues, and a plaintiff's lack of self esteem or sense of heightened danger at the time of separation.

It may seem frustrating to court personnel to go through the necessary procedures in a c. 209A action repeatedly, only to have the plaintiff fail to follow it through. This Guideline, however, makes it clear that such past experience is not relevant to the question of whether the plaintiff needs protection in a new case, at least insofar as the right to file a new complaint is concerned. Thus, no plaintiff should be turned away based on the outcome of past efforts to seek and obtain protective court orders. [Back]

If the court in which a person initially seeks protection under c. 209A has jurisdiction, the person should be heard as soon as possible in that court, and should not be sent to another court. Referring a plaintiff to another court may discourage the person from seeking the relief to which he or she is entitled under the law, and may expose the person to additional danger. This is particularly so where the other court is at some distance and may be inaccessible to the plaintiff.

Similarly, fragmenting the relief available in the initial court, such as refusing to deal with support orders even when they are necessary to assure a plaintiff's ability to live independently and free from abuse, denies the plaintiff rights which the law provides, and may discourage a victim of abuse from seeking any relief at all.

However, in order to avoid issuing orders inconsistent with those issued by another court, the judge should ask the parties about the existence of other court actions or orders; the parties are required to disclose this information under G.L. c. 209A, § 3, par. 8. Although this requirement appears to relate only to Massachusetts orders, the parties should also be asked to inform the court of any similar orders which may have been issued by other jurisdictions so that such orders can be given due consideration. See Guideline 14:00. The response will govern the type of relief available. For example, if there is an outstanding Probate and Family Court order involving custody or support for minor children, that order will prevent the District Court, the Boston Municipal Court and the Superior Court from issuing custody or support orders, since the Probate and Family Court has superseding authority in those areas and exclusive authority over visitation. If parties are in the Probate and Family Court and there is an outstanding order issued by the District Court, the Boston Municipal Court or the Superior Court, the Probate and Family Court justice shall be temporarily assigned to the department that issued the outstanding order for the sole purpose of hearing and determining whether to modify, extend or vacate the outstanding order to eliminate inconsistencies between said order and a decision of the Probate and Family Court. See Guideline 13:00. For emergency situations, where the plaintiff alleges the likelihood of immediate harm to the children, See Guideline 3:07, and related commentary. [Back]

If there is an outstanding c. 209A restraining order in the same court between the same parties, the court should be notified because the order sought might constitute a mutual order, requiring the judge to make written findings. See Guideline 6:06.

A person engages in violent behavior in a relationship in order to gain or to maintain dominance or control of the victim. For the victim of violence, psychological repercussions may include feelings of shock, fear, depression, shame and helplessness. The extent of victimization and its repercussions extend over time and produce paradoxical behavior in different individuals who are victimized. When victims of violence come to court as plaintiffs in c. 209A actions, the experience can be overwhelming.

The role of the advocate can be helpful in directing the party through the myriad of court procedures. In so doing, the advocates should consult with the personnel in each court identified by the Clerk-Magistrate, Register or Chief Probation Officer to promote efficiency and effectiveness in the processing of these matters. Additionally, trained advocates are often an important element in securing for the plaintiff all of the relief, if any, to which the plaintiff is entitled and in reminding the plaintiff to provide the court with all the information necessary for the judge to make an informed decision. Usually, such individuals explain to a plaintiff the various questions which the judge will likely ask, and encourage the plaintiff to consider and to decide upon what relief the plaintiff will seek from the court.

An advocate may also be aware of potential problems which can be solved before the hearing (e.g., identifying the address, or other identifying information, of a defendant who does not live with the plaintiff), or can identify other problems of which the judge should be aware (e.g., the presence of weapons in the home which have been used in an abuse incident). An advocate may facilitate the service of the orders by acting as a liaison with the police department. Moreover, an advocate may be in a position to assist a plaintiff in developing a plan of action which will help to keep the plaintiff safe after the order is issued and in making referrals for other appropriate kinds of assistance, such as support groups, shelters, etc.

Typically, law students and others who have volunteered to assist parties in these proceedings have chosen to assist plaintiffs. However, law students or other volunteers who wish to assist defendants should be permitted to appear with them in accordance with these Guidelines.

Other individuals, such as family members or friends, may also provide support for the parties, and such individuals should be encouraged to accompany parties at each stage of the proceedings.

The assistance of any advocate in any particular situation should not be permitted to interfere with the party's wishes or with the court's or the Clerk-Magistrate's or Register's ability to conduct an orderly proceeding. [Back]

From time to time, confusion can arise regarding the scope and purpose of c. 209A. For example, it has been reported that some local police departments may refer all manner of neighborhood or social disputants to the court "for a restraining order."

The court should, whenever possible, resolve any such misunderstandings by taking the initiative in contacting any person or group making such misleading referrals, and explaining the statutory requirements and limits of the law.

This is one example of an instance where a regular court "round table" may be helpful, particularly in dealing with the police. See Commentary, Guideline 1:04. An ongoing dialogue among all of the participants involved in abuse prevention proceedings provides a forum to address such concerns in an appropriate manner.

Where a plaintiff appears, but no subject matter jurisdiction exists under c. 209A (e.g., parties are merely neighbors or co-workers), the case should be brought before the court, if necessary (See Guideline 2:05), and the plaintiff referred to the Superior Court for a possible protective order under that court's general equity jurisdiction.

If such a plaintiff first appears in the Superior Court, court personnel should inform him or her that relief may be available pursuant to the court's equity jurisdiction, and should, where necessary, assist the plaintiff in preparing and filing a complaint to seek such relief. [Back]

General Laws c. 209A, § 7, states that the judge "shall cause a search to be made" of the Statewide Registry of Civil Restraining Orders and shall review the resulting data. The probation department is required to make this search. It must be completed as soon as possible after the complaint is received, so that the judge will have the results when the case proceeds in court. This search must be repeated before each subsequent hearing.

The purpose of the search is to provide the court with information about the defendant that can be essential to providing protection for the plaintiff, either in terms of immediate court action (where the defendant is on default or probation status, see Guidelines 3:05 and 5:07), or in terms of appropriately adjudicating or fashioning protective orders. The Statewide Registry of Civil Restraining Orders contains records of active, expired and vacated G.L. c. 209A Orders.

The probation department may also be called upon by the court to perform other functions at later stages of the case. However, use of probation officers to "help resolve the parties' problem" or to mediate disputes is fundamentally inconsistent with the protective purpose of the c. 209A procedure.

A check of the Court Activity Records Information database (CARI), including the Statewide Registry of Civil Restraining Orders, may also reveal information pertinent to federal law regarding possession of guns by defendants convicted of "misdemeanor crimes of domestic violence." See Guidelines 4:04 and 6:05. [Back]

Neither c. 209A nor the Warrant Management System under G.L. c. 276, § 29 explicitly requires the court to check the Warrant Management System before issuing civil restraining orders under c. 209A. Nevertheless, the Guideline takes the position that this check should be made before each restraining order hearing so that the court can comply with c. 209A, § 7. "In all instances where an outstanding warrant exists, a judge shall make a finding, based upon all of the circumstances, as to whether a threat of bodily injury exists to the petitioner. In all instances where such an imminent threat of bodily injury is found to exist, the judge shall notify the appropriate law enforcement officials of such finding ...." G.L. c. 209A, § 7. Warrants which predate the implementation of the Warrant Management System (so-called "legacy warrants") are not in the Warrant Management System and may be contained the CARI system. Therefore, it is critical that the judge in the session have warrant information from both the Probation computer (CARI) and the Clerk-Magistrate's or Register's Office computer (Warrant Management System) every time the case is before the court. [Back]

2:12 COMMENTARY

Many plaintiffs may not understand the difference between the civil relief provided by c. 209A and criminal penalties. The law requires that this difference be explained to all complainants instituting c. 209A actions, but does not specify who must provide the complainant with this information. G.L. c. 209A, § 3A. Since the information must be provided "upon the filing" of the c. 209A complaint, and complaints are received by court personnel, the Guideline provides that the Clerk-Magistrate or Register should provide the information through designated staff members. The law requires that the information be given in the plaintiff's native language "wherever possible." G.L. c. 209A, § 3A.

In certain cases, the degree of harm, or threat of harm, is so great that protection under c. 209A alone may not be sufficient. Particularly in those cases, court personnel, in whatever court to which the plaintiff has come, District Court or Boston Municipal Court, should carefully inform the plaintiff about the availability of criminal prosecution, and how this could provide immediate action, specifically, the issuance of a complaint and arrest warrant, if probable cause is found.

Referral to the police or to the District Attorney's office is often appropriate because it permits the prosecutor to assess, and to discuss with the plaintiff, the strength of a prospective criminal action, the level of participation required of the plaintiff in such an action, and the likely outcome. The District Attorney's office is required to give a c. 209A complainant certain "prepared" information and instructions regarding the availability of criminal proceedings and how to initiate them. G.L. c. 209A, § 3A. Referral to a court advocate may assist an undecided plaintiff in choosing a course of action that meets the plaintiff's needs.

However, in situations in which the plaintiff is reasonably believed to have been the victim of a serious crime, the criminal process should not be delayed. G.L. c. 218, § 35A provides the basis for proceeding without notice to the accused. But see also, Commonwealth v. Tripolone, 44 Mass. App. Ct. 23, 27-28 (1997)(upholding dismissal of a c. 209A violation proceeding as possible remedy for failure to comply with the statute regarding notice). If probable cause is found, a warrant, rather than a summons, may be issued under the terms of Mass. R. Crim. P. 6. [Back]

This Guideline is primarily applicable to the District Court and the Boston Municipal Court. Other courts hearing c. 209A cases, however, should inform plaintiffs of the right to file an application for a criminal complaint if it appears a previously issued protective order may have been violated. See Guideline 2:11. Once a c. 209A order to refrain from abuse, for no-contact, to vacate the household, or to surrender a gun, license to carry firearms, firearms identification card or ammunition, is issued, violation of its terms constitutes a criminal offense by the defendant, regardless of the plaintiff's acquiescence. The terms of the order remain in effect until the order expires or until it is modified by the court. Thus, the fact that the plaintiff may appear to have acquiesced in the defendant's violation of the existing order should not control whether a criminal complaint should issue for violation of that order or whether additional civil relief should be ordered, particularly if some new incident of abuse is alleged. See Guidelines 4:05 and 8:03.

Often the plaintiff will come to the court without having sought police assistance. However, if the police are already involved and probable cause has been shown to them, the current law provides for mandatory, warrantless arrest, not the seeking of a complaint and warrant. See Guideline 8:01.

Despite this mandatory arrest provision, some police officers apparently believe that, upon learning that an abuser has violated a protective order, they should advise the victim to seek a criminal complaint and an arrest warrant from the local court, or that the police should themselves seek a complaint and warrant.

If the police do not have probable cause, or if the defendant cannot be found, the complaint procedure may be appropriate. Otherwise, a warrantless arrest is required. Pursuing the normal criminal complaint procedure only serves to delay action. Any concerns a Judge or Clerk-Magistrate may have regarding police policy for seeking a criminal complaint rather than making the required immediate warrantless arrest should be discussed with the local Chief of Police or other appropriate person. See Guideline 2:09. However, despite any concern about the absence of an arrest where one would have seemed appropriate, the Clerk-Magistrate's office should accept and promptly hear any application for a criminal complaint for violation of a c. 209A order. The complainant should not be referred back to the police. [Back]