3:00 Commentary
Guidelines for Judicial Practice
Abuse Prevention Proceedings

Just as non-judicial personnel should not attempt to screen out cases on jurisdictional or other grounds (See Guidelines 2:01, 2:05), neither should they attempt to determine which cases do not warrant an ex parte hearing. This issue should be addressed by the court. In other words, all complaints should be brought promptly before the court.

Proceeding with a hearing on a c. 209A complaint without prior notice to the defendant and a right to be heard constitutes an exception to fundamental due process. This exception, i.e., the right to proceed ex parte, is justified only when there is "a substantial likelihood of immediate danger of abuse." G.L. c. 209A, § 4.

In Commonwealth v. Gordon, 407 Mass. 340, 349 (1990), the Supreme Judicial Court found that the abuse required for the plaintiff to be put "in fear of imminent serious physical harm" under Chapter 209A is also consonant with the common law definition of assault, an act placing another in reasonable apprehension that force may be used. Id. In Commonwealth v. Matsos, 421 Mass. 391, 394-395, (1995) the Supreme Judicial Court, citing Gordon, held that placing a victim "in fear of bodily injury" approximates the common law definition of the crime of assault and the court should look to the words and actions of the defendant in light of the attendant circumstances to determine if the apprehension is reasonable. Id.

Otherwise, notice to the defendant must be given before any hearing can be held. In exceptional circumstances, where the presence of the defendant can be easily obtained, and the safety of the plaintiff is not compromised, the court may briefly delay the hearing until the defendant is present. [Back]

No plaintiff should be turned away, asked to make another trip to the court house, or required to wait an unreasonable period of time to be heard. Such delay could discourage a plaintiff in need of protection from remaining at the court or from returning to obtain necessary relief. Courts may adopt one, both, or a combination of the following approaches: (1) Interrupt regularly scheduled court business and bring such cases before the court during "breaks" in the proceedings; or (2) Schedule c. 209A hearings for a certain time of the day in a particular session. In choosing the time, the court should consult with victim-witness personnel of the District Attorney's office, the police, and/or any participating advocacy groups, as appropriate. However, in cases where waiting until the assigned time would cause significant inconvenience to the plaintiff, the matter should be brought before the court as soon as possible.

Some Clerk-Magistrates or Registers offices and advocacy groups use a specified time in the morning to assist plaintiffs in filing c. 209A complaints. Scheduling hearings for c. 209A complaints at a time of the day which coincides with these other efforts may be a way of accommodating a substantial number of plaintiffs. It may also increase the efficiency of hearing these complaints. In no case, however, should this practice delay a more immediate hearing where one is possible and appropriate.

In cases where the presence of the defendant can be quickly obtained, and this is appropriate, the matter can be held until the defendant's arrival. See Commentary to Guideline 3:00. Such a procedure may eliminate the need for either party to return to the court for a hearing after notice within ten days, or at another time.

The First Justice, Regional Administrative Justice or Chief Justice of the Court Department is responsible for addressing this subject with an effective and clearly understood policy.

G.L. c. 209A, § 5 permits a "representative" of a plaintiff who is "unable to appear in court without severe hardship due to the plaintiff's physical condition" to "appear in court on the plaintiff's behalf and file the requisite complaint with an affidavit setting forth the circumstances preventing the plaintiff from appearing personally." See Appendix A, G.L. c. 209A, § 5 and Guideline 11:00. [Back]

Chapter 209A confers broad jurisdiction to issue protective orders regarding interpersonal violence. Marriage between the parties is only one basis of such jurisdiction. Unmarried persons who currently live together, or who did so in the past, are also within the court's jurisdiction under c. 209A, regardless of whether the relationship between them is homosexual, heterosexual, or not sexual. In addition, a substantive dating relationship between the parties confers jurisdiction on the District Court, Boston Municipal Court and Probate and Family Court, regardless of whether the parties ever lived together.

Under G.L. c. 209A, § 1, whether a "substantive" dating relationship does or did exist depends upon the following statutory factors:

(1) the length of time of the relationship;

(2) the type of relationship;

(3) the frequency of interaction between the parties; and,

(4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship.

In these cases, the court should give broad meaning to the term "substantive dating relationship" to assure that the protective purposes of the statute are achieved. The lifestyles of the parties, e.g., unmarried persons living together, or gay or lesbian relationships, are not an appropriate subject for comment by anyone in the court. See also Guideline 2:02 for particular privacy considerations in gay and lesbian relationships. The Superior Court does not appear to have jurisdiction over c. 209A cases in which the plaintiff seeks relief based on the statutory criterion of "substantive dating or engagement relationship." See G.L. c. 209A, § 1, "court" and "family or household members" subsection (e).

The court should give broad meaning to the words "related by blood or marriage." The test should be whether the relationship puts the parties into contact with one another, even though they might not otherwise seek or wish for such contact. For example, in Sorgman v. Sorgman, 49 Mass. App. Ct. 416 (2000), the Appeals Court found that an unadopted "stepdaughter," who had not lived in her "stepfather's" household for twenty years following her biological mother's divorce from him, had the requisite relationship for the purposes of the issuance of a G.L. c. 209A order against him. Id. at 417-418. The Court expressly rejected the defendant's argument that the statute did not apply to "'ex-stepchildren' . . . whose 'ex' status has persisted for so many years," on the basis of the "plain statutory language" of G.L. c. 209A, §§ 1 and 3, and the fact that "the parties continued to have contact and involvement with each other long after the marriage and living arrangement which initially gave rise to their relationship ended." Id. at 418.

Jurisdiction may also depend upon whether the parties "are or were residing together in the same household." G.L. c. 209A, § 1. This terminology is not defined in the statute, but in Sorgman v. Sorgman, 49 Mass. App. Ct. 416 (2000), the Appeals Court found that the "plain statutory language" of G.L. c. 209A, § 3 includes both past and present members of the household. Id. at 417-418. The Court found that, despite her having left the household approximately twenty years earlier, an unadopted "stepdaughter's" residence in the defendant's household for a period of ten years satisfied the "household" requirements of G.L. 209A, §§ 1 and 3. Id. at 417. However, the concept of how much time a person must spend in order to be considered a member of a household would appear to be a flexible one. If a defendant is only a frequent visitor, jurisdiction based on a dating relationship will often apply.

Household resident status, for the purpose of determining jurisdiction, should not be applied to those who live in different apartments in multiple family dwellings. The provision in the law which refers to multiple family dwellings provides that vacate orders can extend to a defendant living in the same building (though in a different unit) as the plaintiff, where the court otherwise has jurisdiction, e.g., because the plaintiff and the defendant are family members or were dating. In addition, a defendant who is ordered to vacate the plaintiff's household may be ordered to stay away from the entire building, including apartments other than the one occupied by the plaintiff, if such an order is necessary to assure the plaintiff's safety.

A plaintiff seeking protection in a situation in which no c. 209A jurisdiction exists (for example, co-workers or neighbors) should be referred to the Superior Court for exercise of general equity jurisdiction to provide protection. See Guideline 2:09. [Back]

Section 2 of the Abuse Prevention Act is entitled "Venue." However, the requirements set forth there appear to be jurisdictional.

Those requirements are that the action must be "filed, heard and determined" (1) in the court within whose judicial district the plaintiff resides, or (2) where the plaintiff has left a residence or household to avoid abuse, in the court within whose judicial district that prior residence or household is located or in the court within whose judicial district the plaintiff's current residence is located. Since these appear to be prerequisites to the court's authority to act, they should be considered jurisdictional. Thus, failure to meet these requirements is not a defect that the defendant waives by not raising it. Rather, such failure renders the court without authority to act.

Jurisdiction, however, is personal. That is, once the court has jurisdiction over the parties, as described above, the court's order is valid anywhere in the Commonwealth. Thus the same court may order the defendant to stay away from the plaintiff's new residence, which is in the territorial jurisdiction of the court, and the plaintiff's parents' home, where the children stay regularly, and the plaintiff's workplace, even though the latter two locations are not within the territorial jurisdiction of the issuing court.

As indicated in Guideline 2:05, where the initial interview with the plaintiff reveals that the case does not meet the requirements of territorial jurisdiction, this should be explained to the plaintiff and he or she should be directed to the proper court. If the plaintiff persists in the desire to file the complaint, however, this must be allowed, even if it is plain that the court will refuse to issue the order on jurisdictional grounds. If there are any factual questions concerning territorial jurisdiction, the complaint should be completed and the matter brought before the judge.

In emergency situations, where a plaintiff is in danger and unlikely to reach the appropriate court the same day, either because the plaintiff has no transportation, or because the matter arises late in the day, or for other reasons, a judge in the District Court may seek leave from the Regional Administrative Judge to act for the appropriate District Court and issue the order. Such authority to designate one District Court judge to act as another is provided to the Chief Justice of the District Court in G.L. c. 218, § 43A, and he has delegated this authority to the Regional Administrative Justices under G.L. c. 211B, § 10(xii).

If a plaintiff comes to court during court hours seeking relief under G.L. c. 209A, but no judge is at the court, the matter may be heard by telephone by a judge in a different court. The plaintiff should not be told to travel to a different court or to wait until the Emergency Response System goes into operation at 4:30 p.m. An ex parte order issued over the telephone during court business hours should be for a duration of ten court business days or such shorter time as the court finds appropriate; this situation is distinguishable from emergency orders issued when the court is not in session. Those orders should expire at the end of the next court day. See Commentary to Guideline 11:00. [Back]

There is a long standing aversion in the law to judicial proceedings held in secret. The right of public access to civil as well as criminal proceedings is inherent in the nature of a democratic form of government. United States v. Mitchell, 551 F.2d 1252, 1258 (D.C. Cir. 1976), rev'd on other grounds sub nom., Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978). As Justice Oliver Wendell Holmes stated while he was a member of the Massachusetts Supreme Judicial Court:

It is desirable that the trial of [civil] causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes to the mode in which a public duty is performed.

Cowley v. Pulsifer, 137 Mass. 392, 394 (1884).

This right of public access to civil trials is a requirement of the First Amendment. Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984). However, there are exceptions to the required presumption of openness of civil judicial proceedings. The party seeking to close the hearing has the burden of proving good cause, and good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. Zenith Radio Corp. v. Matsushita Electrical Industrial Co., 529 F. Supp. 866, 890 (E.D. Pa. 1981). The injury must be shown with specificity. Id.

The Trial Court, in closing a proceeding to the public, must both articulate the countervailing interest it seeks to protect (in most c. 209A cases this, presumably, would be the privacy of the plaintiff or the plaintiff's children) and must make "findings specific enough that a reviewing court can determine whether the closure order was properly entered." See Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501 (1984).

In short, the court in c. 209A cases has to make a case-by-case decision on whether closure is justified and should make its specific findings on this issue part of the record. The latter is most easily accomplished by stating those specific findings for the audio record.

All proceedings under c. 209A should be electronically recorded. In the District Court, electronic recording is mandatory by Rule. Rule 211, District Court Special Rules. Recording of court proceedings is required in the Probate and Family Court pursuant to the Supplemental Rules of the Probate and Family Court. See Suppl. Rule 201. [Back]

The defendant's criminal and previous c. 209A record, if any, can be relevant to the court adjudicating the complaint at the ex parte hearing, but the record's primary value, especially at the ex parte stage, will be in helping to identify situations in which the plaintiff may face a particularly heightened degree of danger.

The requirement that the judge notify the "appropriate law enforcement officials" about an outstanding warrant is triggered by the existence of any outstanding warrant. It is not clear from the statute who the "appropriate law enforcement officials" are, but they should be considered to be the police department to which the c. 209A order is sent for service. Officers from that department are ordered to look for the defendant for service; they should be notified about outstanding warrants so that they can arrest the defendant on the warrants if and when they find him or her. In addition, such notice is important for the safety of the serving police officer. The c. 209A order form provides a place to notify anyone reading it that a warrant exists, (Paragraph A.15, Form FA-2A, copy included at Appendix C), and completing this part of the order would seem to comply with the statute's notice requirement. It also provides the plaintiff with the warrant numbers so that, if the defendant violates the order, and the plaintiff calls the police for emergency assistance, he or she can give the warrant numbers to the responding police officers. (However, arrest in such circumstances does not usually require the existence of a warrant. See Guideline 8:01.)

It should be considered significant that the actions that are legally required once the existence of a warrant against a c. 209A defendant is revealed are imposed on "the judge" and not "the court." This participation by the judge may be essential in protecting the plaintiff from abuse.

The printed copy of the defendant's criminal record should usually be destroyed or returned to the defendant's probation file, if any, unless the judge has a special reason for wanting a record of the information which was available at the time of the ex parte hearing. In accordance with the Uniform Probate Court Practices (proposed), the printed copy of the defendant's criminal record shall be maintained in a separate file by the Probation Department. The printed copy should not be placed in the case file since doing so could result in a violation of the CORI law if the criminal record is inadvertently revealed to one who has obtained public access to that file. See Guideline 1:05. In addition, it is important that an up-to-date copy of the defendant's criminal record be obtained for each hearing; an old copy of the record may give inaccurate or incomplete information.

Probation Departments are notified each day about the court activity of their probationers during the previous day. Therefore, each supervising probation officer should learn on the next court day about any c. 209A restraining orders issued against his or her probationer and entered on the CARI system. In situations of particular danger or urgency, however, it may be appropriate for the judge to order that the probation officer supervising a c. 209A defendant be notified immediately. This notice can serve two purposes. First, the actions which constitute the basis for the c. 209A order may be sufficient to constitute a violation of the defendant's terms of probation. The supervising probation department may wish to bring the allegations to the attention of the sentencing court, either by sending the defendant a surrender notice, or, in situations of particular danger, requesting an arrest warrant. The Commissioner of Probation has issued guidelines for the surrender of probationers on the basis of the issuance of protective orders under G.L. c. 209A. See "Recommended Guidelines Regarding (1) c. 209A Actions Against Active Probationers and (2) Enforcement of Stay-Away Orders," issued by the Commissioner of Probation on October 12, 1993. See also District Court Transmittal No.724, December 16, 1999, "Highlights of new District Court Rules for Probation Violation Proceedings," at Appendix A-5.

Second, the supervising probation department can sometimes assist the court in notifying a defendant of the issuance of the ex parte order. This is particularly useful in situations where the plaintiff does not know where the defendant can be served.

It should be noted that the Statewide Registry of Civil Restraining Orders usually does not provide information on "straight" warrants, i.e. warrants issued with a complaint before the defendant is arraigned. Also, domestic abuse orders issued prior to September 8, 1992 are not listed in the probation system. [Back]

At the ex parte hearing, as at the hearing after notice in c. 209A proceedings, strict adherence to the common law rules of evidence is not expressly required by the statute. See Guideline 5:03. For example, the court can properly receive testimony that would otherwise be hearsay (e.g., "the doctor said that I had a concussion."). "The rules of evidence need not be followed, provided there is fairness in what evidence is admitted and relied on." Frizado v. Frizado, 420 Mass. 592, 597-598 (1995), at Appendix 0.

The regular civil standard of proof, preponderance of the evidence, should be applied. Frizado v. Frizado, 420 Mass. at 597 (1995). See Guideline 5:04. Since the plaintiff is unopposed at the ex parte hearing, it is essential that the court be satisfied that the evidence submitted is credible, and sufficient as a matter of law, to justify the issuance of an order. The court should question the plaintiff, if necessary, to make this determination. In certain circumstances, inquiry beyond the face of the written affidavit or the plaintiff's oral statement is not only appropriate, but essential, to the proper exercise of the court's authority to decide these significant issues in the absence of the opposing party. See Guidelines 4:01 and 4:05. [Back]

The court should begin the ex parte hearing with a review of jurisdiction. If the court lacks subject matter or territorial jurisdiction (See Guidelines 3:02 and 3:03, respectively), this will render any resulting order invalid and successful prosecution for a violation of that order will not be possible. If the court lacks subject matter jurisdiction (e.g., parties are merely neighbors or co-workers), the plaintiff can be referred to the Superior Court for exercise of that court's equity jurisdiction.

The sensitivity that must be shown to one alleging abuse cannot erode the court's responsibility to view an accusation as just that, an accusation. One way to maintain fairness and the perception of fairness is for the court to adjudicate the factual allegations before considering the requested relief. Considering the contents of the requested order without first adjudicating the alleged facts is premature and can imply that the validity of those allegations was not carefully considered. The need to maintain an appropriate degree of decorum and to avoid unnecessary informality is particularly acute at the ex parte hearings where the rights of the accused are being decided without notice or any opportunity to challenge the accusations or to present a defense.

If there is an existing Probate and Family Court custody and/or visitation order, the court in another department of the Trial Court may not issue custody or support orders. If such a current order exists but the plaintiff seeks an order from another court ordering the defendant to stay away from, or to have no-contact with, the defendant's minor children, the court should refer the plaintiff to the Probate and Family Court for only that relief. While the other court has statutory authority to issue such an order, it is more appropriate that it be heard in the court where the parties have already appeared. The Probate and Family Court will also have superseding jurisdiction in custody and support matters: its exclusive jurisdiction over visitation matters may be seriously hampered by a subsequent no-contact or stay away order issued by a different court and made applicable to the defendant's minor children. See Guidelines 2:07, 4:01, 5:01 and 6:00. See also Guideline 13:00.

In an emergency situation, where a plaintiff has come to a court other than the Probate and Family Court, and there is an existing Probate and Family Court custody and/or visitation order, there is an allegation or threat of serious harm to the children who are the subject of that order, and it is so late in the day that the plaintiff does not have sufficient time to reach the Probate and Family Court, the judge in the other court has at least two options. The first is to speak with the Probate and Family Court judge by telephone and to inquire whether that judge wishes to amend the existing order over the telephone. The substance of any such conversation should be supplied to the parties on the record, either through a memorandum to the file or in open court. In the alternative, the judge may issue the requested order for a short period of time (usually no more than 72 hours) to permit the plaintiff to go to the Probate and Family Court to seek the same relief. [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 the court to "drop" the order, or by failing to report violations of an order. Many complex dynamics can contribute to a failure to follow through. These include a lack of self esteem, coercion or intimidation by the defendant, economic necessity, efforts at reconciliation, or a sense of heightened danger at the time of separation.

Although the filing of repetitious complaints may be frustrating to the court and to the court staff, the plaintiff should be assured that the court's only concern is to adjudicate the new complaint on its merits and to provide any protective orders that are warranted by the evidence. See Guidelines 2:12 and 5:08. [Back]

Trained advocates and friends or relatives of the party can play an important role in supporting the party through what may be a difficult process and in reminding the party to provide the court with all relevant information. See Guidelines 1:04, 2:08, and 5:02.

The role of the non-lawyer advocates in the courtroom should be limited to aiding the parties in their presentation to the court. Such aid may involve reminding the party of relevant factual information or pertinent circumstances that a party may have forgotten to state or, for whatever reason, did not bring to the court's attention. An advocate with personal knowledge pertaining to the allegations raised by the party may testify to such facts upon being sworn as a witness. The role of the court is to ensure that the support supplied by the advocate does not extend beyond its appropriate function. It is the party's case presented through the evidence supplied by the party that the court must consider. [Back]