4:00 Commentary
Guidelines for Judicial Practice
Abuse Prevention Proceedings

4:00 COMMENTARY

It is a fundamental tenet of due process that one cannot be deprived of personal or property rights without advance notice and the right to be heard. Departures from this principle are allowed only on exceptional grounds. Ex parte orders in domestic abuse cases (e.g., requiring a defendant to leave the home with no right to be heard in opposition) are justified only insofar as the danger to the plaintiff is immediate and outweighs the defendant's right to be heard before the order issues. This exception to the defendant's due process rights can last only until the defendant can be notified and a hearing can be scheduled and conducted.

Accordingly, the ex parte orders should last only until the hearing after notice can be held, and that hearing should be scheduled for a date as soon as possible, consistent with service on the defendant, and, in any event, no more than "ten court business days" after the ex parte hearing. G.L. c. 209A, § 4, second par. [Back]

4:01 COMMENTARY

The authority granted to the court under c. 209A is not limited to any specific type of relief. G.L. c. 209A, § 3. Nor is the court limited to the forms of relief originally requested by the plaintiff on the complaint form. The court should fashion its relief order in response to the need for protection shown by the facts presented at the hearing. For example, it may be determined that the defendant should be specifically ordered not to call or otherwise contact the plaintiff at the plaintiff's place of employment, despite the fact that this was not included on the complaint.

The protective purpose of ex parte orders may be interpreted broadly. For example, under appropriate circumstances, an ex parte order requiring the defendant to leave the keys to the family car with the plaintiff might be deemed "protective," in the sense that it eliminates one reason for the plaintiff to contact the defendant during the duration of the ex parte order. When justified by the facts, the court has authority to order a defendant to stay away from a particular school or job site, even if the defendant attends the school or works at the same location. In such cases, the plaintiff should be provided with an additional copy of the order for the school or employer, so that responsible parties in those places will be notified of the court order, as well as of the possibility of danger to the plaintiff.

A defendant who anonymously sent roses to the plaintiff was convicted of violating the "no-contact" order, and the Massachusetts Appeals Court upheld the conviction. Commonwealth v. Butler, 40 Mass. App. Ct. 906, 907 (1996) (Rescript). "The defendant's acts were within the prohibited circle: he acted 'otherwise' than in person, by telephone, or in writing; 'through someone else' rather than directly, but he achieved a communication with ... [the plaintiff] amounting to 'contact.' His profession of anonymity merely invited inquiry." Id. at 907. "Protestations of 'non-hostile intent' or 'a desire to make amends' are quite irrelevant to the enforcement of a no-contact order." Id. at 907 n.3.

A defendant who "jumped in the air and waved his arms. . ." while he was one block or more away from the victim and frightened her was found to have violated the no contact provision of the order. Commonwealth v. Basile, 47 Mass. App. Ct. 918, 919 (1999) (Rescript). See also Commonwealth v. Crimmins, 46 Mass. App. Ct. 489, 489-496 (1999)(contact found when the defendant followed the victim's car).

On the other hand, the orders must be reasonable. In particular, an order which requires the defendant to stay a great distance, such as 1,000 yards, or even 500 or 200 yards, away from the plaintiff is difficult to enforce. It is almost impossible for such a defendant to know when he or she is violating the order; consider, for example, a busy shopping mall. Moreover, proving such knowledge beyond a reasonable doubt would likely be an insurmountable burden for the Commonwealth in a criminal trial. Similarly, a District Court order which requires a defendant to stay "five football fields" away from the plaintiff makes it extremely difficult for the Probate and Family Court to craft an appropriate visitation order without amending the District Court order. See Guideline 13:00 regarding inconsistent orders. Orders which require a defendant to stay from twenty to 100 yards away from the plaintiff are usually sufficient. An order requiring the defendant to stay "at least one hundred yards away" from the plaintiff and her job has been interpreted to require the defendant to stay one hundred yards away from "all of the property on which the workplace is located including the adjacent parking lot." Commonwealth v. O'Shea, 41 Mass. App. Ct. 115, 118 (1996). However, it would not be a violation of the order for the defendant to enter the plaintiff's job site when she was not at work. SeeGuideline 6:00.

In addition, as noted in Guideline 3:07, in cases where the plaintiff has come to a court other than the Probate and Family Court, but there is an existing Probate and Family Court custody and/or visitation order, and 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 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. 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 on a longer term basis.

Reading the order before signing it allows the judge to make sure that the order is complete. For example, a no-contact order (Form FA-2, paragraph A.2 or A.7) should always include a reasonable distance in yards which the defendant should observe in staying away from the plaintiff (A.2) or the children (A.7). Reading the order aloud also allows a plaintiff to bring to the judge's attention requested relief which may have been forgotten or overlooked. [Back]

4:02 COMMENTARY

The Abuse Prevention Act contains no limitation on relief orders based on the property interest of a defendant in the household residence. For an ex parte order to vacate, the only relevant issues are (1) whether the plaintiff shows, by a preponderance of the evidence, that there is "a substantial likelihood of immediate danger of abuse," and (2) whether an order to vacate is needed to protect the plaintiff from that abuse.

Thus, if the plaintiff and the defendant are household members, and if the defendant is abusing the plaintiff, then a vacate order is appropriate, irrespective of whether the defendant is the owner or lessee of the household premises. A defendant who is the owner or lessee of the premises might argue that the plaintiff's right to occupy the premises as an invitee has terminated and that the plaintiff is a trespasser. But this is a separate issue. The defendant may seek relief in other forums, including summary process proceedings, but until the plaintiff leaves, the defendant's property interest in the household premises is subordinate to the protection afforded by the order to vacate. The defendant remains the owner or lessee, but this does not affect the court's authority to issue an order to vacate, especially for the brief duration of an ex parte order. This interpretation is consistent with the provision in the Abuse Prevention Act that states that no order under that law shall in any manner affect title to real property. G.L. c. 209A, § 3(c).

Given the impact of a vacate order on the defendant, there is a particular need, when such an order is issued ex parte, to limit its duration to the minimum time consistent with notice to the defendant. Ten court business days is the legal maximum duration of such orders and should not be the presumptive or automatic term for scheduling the hearing after notice.

Under G.L. c. 209A, § 3(c), the court may order the defendant to vacate a multiple family dwelling (the box under Paragraph A.3 of Form FA-2) and to stay away from a workplace (paragraph A.5 of Form FA-2). Both orders require specific notation on the order form.

Regarding the "stay away" aspect of vacate orders, See Commonwealth v. Gordon, 407 Mass. 340, 347 (1990) (noting that "the Legislature intended the word 'vacate' to include the concept of 'remain away.'"). [Back]

4:03 COMMENTARY

There are several reasons for avoiding the issues of support and compensation at the ex parte hearing and in the ex parte order.

First, it is unlikely that such matters will relate directly to the statutory purpose of the ex parte order, i.e., providing emergency protection from the immediate danger of abuse.

Second, it is unlikely that the court will obtain adequate information in an ex parte hearing to make an informed decision in these matters, which can require substantial fact finding and testimony from both sides. The hearing after notice provides a more appropriate forum for such fact finding.

Third, even if an order for support or compensation were issued, it is not likely to be enforced prior to the expiration of the ex parte order. In fact, attempts by the plaintiff to demand payment from the defendant before the hearing after notice could be the occasion of further danger of abuse.

In any case, the plaintiff should not be discouraged from seeking support or compensation, but should be told that the court will consider these issues at the hearing after notice, when the defendant has an opportunity to be heard. See Guideline 10:01. The complaint should indicate that the plaintiff is seeking restitution for damage done or support for minor children and the court may indicate the same on the ex parte order. This gives the defendant notice that such issues will be considered and may increase the likelihood of the defendant's appearance before the court. Whether or not support or compensation orders are sought at the ex parte or any subsequent hearing, either party may subsequently move to have such issues heard or reheard at a later time.

Chapter 209A, § 3(e) requires that all orders of support "issued, reviewed or modified" under the statute also conform to and be enforced under the provisions of G.L. c. 119A, § 12 (pertaining to child support enforcement). [Back]

4:04 COMMENTARY

The requirements regarding the issuance these conditions of were added to G.L. c. 209A by Chapter 24 of the Acts of 1994. The statute was amended to require that defendants surrender guns they "control" or "own," in addition to those they "possess." See G.L. c. 209A, § 3B in Appendix A. See alsoGuidelines 2:10 and 6:05.

Because all ex parte orders must include gun license suspension and gun surrender orders, box A.12 of the c.209A order form (FA2, 9/95) must be checked.

Information which may be obtained from the plaintiff about types of guns that the defendant possesses, where they are kept, etc., can be important for police officers to implement the order safely and effectively. Accordingly, such information should be noted on The Defendant Information Form (Form FA-5), question 3, at the bottom of the page.

Forms FA-2 and FA-5 are included at Appendix C.

Federal Gun Law on this subject has changed. The Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, § 658, effective September 30, 1996, amends the Federal Gun Control Act of 1968 by extending its gun ban provisions concerning the sale, transportation and possession of guns to encompass individuals who have been convicted of misdemeanor crimes of domestic violence. A misdemeanor crime of domestic violence is any misdemeanor under Federal or State law that has as an element the use or attempted use of physical force or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim. 18 U.S.C. § 921(33)(A).

Under the Gun Control Act, it is a federal crime for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or otherwise dispose of any firearm or ammunition to any person who he knows or has reason to believe (1) is under indictment for or has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year; (2) is a fugitive from justice; (3) is an unlawful user of or addicted to any controlled substance; (4) has been adjudicated as a mental defective or who has been committed to a mental institution; (5) is an alien illegally or unlawfully in the United States; (6) has been discharged from the Armed Forces under dishonorable conditions; (7) has renounced his United States citizenship; (8) is subject to a domestic abuse restraining order, or (9) has been convicted of a misdemeanor crime of domestic violence. 18 U.S.C. § 922 (d). It is also a federal crime for any person who belongs to one of the aforementioned nine categories to ship, transport, receive or possess any firearm or ammunition which has been shipped or transported in or otherwise affects interstate or foreign commerce. 18 U.S.C. § 922(g).

The ban applies to anyone convicted of a misdemeanor crime of domestic violence regardless of the date of the crime or the conviction unless the conviction has been expunged, or set aside, or the person has been pardoned for the offense, or has had his or her civil rights restored, unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. 18 U.S.C. § 921(33)(B)(ii). In addition, the ban shall not apply to a person if he or she was not represented by counsel and did not make an intelligent and knowing waiver of the right to counsel or was not tried by a jury and did not make an intelligent and knowing waiver of the right to trial by a jury. 18 U.S.C. § 921(33)(B)(ii).

The provisions of Sections 922(d)(9) and 922(g)(9) of Title 18 are specifically excluded from the exemption for the Federal and State Governments set out in 18 U.S.C. § 925(a)(1). Therefore, individuals convicted of a misdemeanor crime of domestic violence cannot transport, ship, receive, or possess any firearm in their capacity as an employee of any state of the United States. (N.B. the governmental exemption continues to apply to a person who is the subject of a domestic abuse restraining order). See Guidelines 2:10 and 6:05.

Courts should be aware that, pursuant to a 1998 statutory amendment pertaining to firearms licensing, a license to carry a firearm may not be issued to any individual subject to a "permanent or temporary protection order issued pursuant to Chapter 209A or a similar order issued by another jurisdiction ..." or to a person who is subject to an order for suspension and surrender of a license and firearms, pursuant to G.L. c. 209A, §§ 3B or 3C. G.L. c. 140, §§ 131(d)(vi) and 131(f), as amended by St. 1998, c. 180, §§ 41 and 46, at Appendix A (excerpts of Chapter 180). In addition, firearms may not be issued to any individual who is the subject of an arrest warrant, G.L. c. 140, § 131(d)(vii), or to an individual who has been convicted or adjudicated a youthful offender or delinquent child for the commission or a felony or misdemeanor punishable by imprisonment for more than two years, G.L. c. 140, § 131(d)(i).

Any license to carry a firearm already issued shall be revoked or suspended if the licensee becomes subject to a 209A order. G.L. c. 140, § 131(f), as amended by St. 1998, c. 180, § 41, at Appendix A. This section of the statute provides:

(f) A license issued under this section shall be revoked or suspended by the licensing authority ... upon the occurrence of any event that would have disqualified the holder from being issued such license or from having such license renewed. A license may be revoked or suspended by the licensing authority if it appears that the holder is no longer a suitable person to possess such license .... Upon revocation or suspension, the licensing authority shall take possession of such license and the person whose license is so revoked or suspended shall take all actions required under the provisions of Section 129D .... Notices of revocation and suspension shall be forwarded to ... the Commissioner of Probation and shall be included in the Criminal Justice Information System. A revoked or suspended license may be reinstated only upon the termination of all disqualifying conditions, if any.

Any applicant or holder aggrieved by a denial, revocation or suspension of a license, unless a hearing has previously been held pursuant to Chapter 209A, may, within either 90 days after receiving notice of such denial, revocation or suspension or within 90 days after the expiration of the time limit during which the licensing authority is required to respond to the applicant, file a petition to obtain judicial review in the District Court having jurisdiction in the city or town wherein the applicant filed for, or was issued, such license. A justice of such court, after a hearing, may direct that a license be issued or reinstated to the petitioner if such justice finds that there was no reasonable ground for denying, suspending or revoking such license and that the petitioner is not prohibited by law from possessing same.

In the furtherance of enforcing these sections, the licensing authority may contact the Office of the Commissioner of Probation, "relative to any record contained within the Department of Probation or the Statewide Domestic Violence Record Keeping System concerning the applicant ...." G.L. c. 140, § 131(e)(ii), as amended by St. 1998, c. 180, § 41, at Appendix A. [Back]

4:05 COMMENTARY

It is not appropriate for the court in a c. 209A proceeding to explore, or to ask plaintiff to explore, the possibility of improving the underlying relationship. The issue presented is whether immediate protection is needed and, if so, what form it should take. See G.L. c. 209A, § 3 and Guidelines 1:01 and 6:01. [Back]

4:06 COMMENTARY

For an ex parte order to be fully effective, its contents and meaning should be explained to the plaintiff. The plaintiff should be told that the police (and, in some cases, the court) will notify the defendant that the order has issued, that the plaintiff should contact the police if the defendant violates the order, and that the plaintiff should notify the court if the police do not respond appropriately. (As explained in Guideline 8:01, some police may incorrectly believe that a warrant must be obtained in order to arrest the defendant for a violation of a c. 209A order.)

The plaintiff should also be told that, unless and until the order is terminated or modified by the court, any action by the defendant contrary to its terms will subject the defendant to immediate, warrantless arrest and possible criminal prosecution, regardless of whether the plaintiff "consented" to the violation. [Back]

4:07 COMMENTARY

"Forthwith" transmission of the necessary papers to the police is specifically required by law. G.L. c. 209A, § 7, seventh par. The Clerk-Magistrate or Register should transmit the papers to the police department in the best position to make prompt service, and should question the plaintiff if that would be helpful in making this determination. For example, when a defendant has been ordered to vacate the household, a plaintiff who does not know the location of the defendant's current residence may know where he or she works. In any event, all of the information which the plaintiff possesses about the defendant's whereabouts should be contained on the defendant information form described in Guideline 2:03.

In ordering service, the court should specify in-hand service if possible. Failure to make in-hand service may render the ex parte order ineffective. Further abuse will not be deterred if the defendant does not know that the order exists. Leaving the order and complaint at the "last and usual place of abode" may be ineffective if this is the address that the defendant was ordered to vacate in the emergency order.

In appropriate circumstances, the Court may order an alternative method of service. Specifically, the Supreme Judicial Court has held, "when the appropriate law enforcement agency has made a conscientious and reasonable effort to serve the statutorily specified documents on the defendant, but has nevertheless failed, the agency should promptly notify the court so that a judge, if satisfied after a hearing that an appropriate effort has been made, may order that service be made by some other identified means reasonably calculated to reach the defendant. Where such substituted service appears unlikely to notify the defendant, the judge may excuse service." Zullo v. Goguen, 423 Mass. 679, 681 (1996). See also Commentary to Guidelines 5:05 and 6:03.

The "necessary papers" to be served include a copy of the order and the complaint, but not the affidavit. See Flynn v. Warner, 421 Mass. 1002, 1002 (1995)(Rescript). The statute also refers to service of a "summons," but this appears to be an error since the defendant is given an opportunity to appear at subsequent hearings, but is not required to do so. For this reason, summonses are not issued for defendants in c. 209A cases.

The police are required to "promptly" make a return of service. If the return is not made prior to the date of the hearing after notice, and there is no other evidence of notice to the defendant, an order after notice may not be issued at that time. See Guideline 5:05. Furthermore, successful prosecution for violation of an order of which the defendant is unaware is probably impossible. See Commentary to Guidelines 5:05 and 6:03 regarding service of orders after notice.

Incarcerated defendants have the right to be heard on the requested extension of the ex parte order at a hearing after notice. The court should take steps to inform them of this right and to secure their presence in court if requested to do so. A sample notice and motion for writ of habeas corpus are provided at Appendix G.

In a prosecution for a violation of a 209A order, actual service of the order is unnecessary if the Commonwealth can prove beyond a reasonable doubt that the defendant had actual knowledge of the terms of the order. Commonwealth v. Delaney, 425 Mass. 587, 589-593 (1997), cert denied sub nom., Delaney v. Commonwealth, 522 U.S. 1058 (1998); Commonwealth v. Chartier, 43 Mass. App. Ct. 758, 765 (1997). In Delaney, the defendant was initially served with a 10-day restraining order issued ex parte under G.L. c. 209A, which was left at his last and usual address and which warned him, in pertinent part, that if he failed to appear on the hearing date "an extended or expanded [o]rder may remain in effect for up to one year." Delaney, 425 Mass. at 588. The defendant failed to appear at the hearing, a 1-year order was issued, but not served, although there was evidence that the defendant had verbally acknowledged its existence. Delaney, 425 Mass. at 589. The court stated that "[i]n these circumstances the service of the extended order on the defendant was not a prerequisite to his prosecution for violating the terms of the order" since "the jury could have found that the defendant had actual and constructive notice of the order and that it continued in effect after the hearing date." Delaney, 425 Mass. at 591; see also Commonwealth v. Munafo, 45 Mass. App. Ct. 597, 601-602 (1998) (concurring with Delaney that failure to serve an extended order was not fatal error). Failure to serve the order is, however "relevant to a determination as to whether the defendant possessed the knowledge required" for a conviction. Delaney 425 Mass. at 593. [Back]