5:00 Commentary
Guidelines for Judicial Practice
Abuse Prevention Proceedings

5:00 COMMENTARY

Scheduling of the c. 209A hearing after notice should be expedited to the extent possible. If an ex parte order is issued, the hearing after notice must be held within "ten court business days" after the date of issuance. "Ten court business days" should be interpreted to mean ten days on which the court is open. Thus, Saturdays, Sundays and holidays are excluded. Courts should attempt to schedule hearings after notice sooner than the ten-day maximum if effective service of notice on the defendant and return of service can be made.

Nothing in the law requires two hearings, or a "cooling off period" between the ex parte and the hearing after notice. If both parties are present in court at the time of the plaintiff's initial contact with the court, or if the defendant's presence can be promptly obtained, there is no justification for proceeding ex parte.

Conducting a hearing after notice without a preliminary ex parte proceeding is particularly appropriate when the plaintiff is present and the defendant is before the court for arraignment, following arrest for an abuse related crime, and when no previously issued order is in effect. See Guideline 8:07. [Back]

5:01 COMMENTARY

In abstract terms, a hearing with both parties in a c. 209A matter is like any other contested civil proceeding. The plaintiff presents his or her evidence, the defendant presents his or her evidence, and the court decides if the plaintiff has proven the case by a preponderance of the credible evidence.

However, there are unique aspects to hearings under c. 209A. Most obvious are the interpersonal nature of these cases and the emotional and volatile issues involved. The court must be prepared to ensure control and to address any hostility or security issues that may emerge.

In most cases an ex parte hearing will have been held, and an ex parte order issued against the defendant. Nevertheless, the plaintiff still bears the burden of proof at the hearing after notice. Fairness requires that the plaintiff's case be restated so that the defendant will know what has been alleged. This restatement may take the form of permitting the defendant to read the plaintiff's affidavit if one is contained within the file, and if the defendant is able to read English. Frizado v. Frizado, 420, Mass 592, 597 (1995). "A defendant or his counsel should be given adequate opportunity to consider any affidavit filed in the proceeding on which the judge intends to rely before being required to elect whether to cross-examine the complainant or any other witness." Id.

The defendant must then be given an opportunity to respond to the allegations bearing in mind that the defendant does not bear the burden of disproving the allegations or of proving that the ex parte order should not continue. "An inference adverse to a defendant may properly be drawn, however, from his or her failure to testify in a civil matter such as this even if criminal proceedings are pending or might be brought against the defendant." Frizado v. Frizado, 420 Mass. at 596 (1995). The plaintiff may then, in the court's discretion, be given an opportunity to supplement the allegations in the affidavit and respond to the defendant's statements.

"A defendant has a general right to cross-examine witnesses against him. There may be circumstances in which the judge may deny that right in a G.L. c. 209A hearing, and certainly a judge may limit cross examination for good cause in an exercise of discretion." Frizado v. Frizado, 420 Mass. at 597 (1995). In a footnote, the Supreme Judicial Court agreed that cross examination should not be permitted for harassment or discovery purposes in c. 209A actions, but also observed that the "judge's discretion in restricting cross-examination may not be unlimited in particular situations." Id. at 598 n.5. See also Silvia v. Duarte, 421 Mass. 1007 (1995). In that case, the Supreme Judicial Court upheld the trial judge's refusal to allow any cross examination where the parties were not married, shared no common domicile and no children, the defendant had served prison time for violence against the plaintiff, the plaintiff appeared pro se and the defendant was represented by counsel, the defendant asserted his Fifth Amendment privilege and declined to offer any evidence, and the only order entered was one to stay away from the plaintiff, an order that the court described as a "minimal intrusion." Id. at 1008.

The court must always exercise control. Orderly procedure requires, for example, that each participant, including the parties, witnesses, and counsel, address remarks only to the court. The court should be alert to eliminate any possibility that either party will attempt to dominate the proceedings or to intimidate the other. In cases where serious abuse has taken place, a plaintiff may be intimidated merely by the defendant's presence. Many courts position court officers and advocates between the parties during the hearing, particularly a hearing conducted at side bar, to prevent intimidation and any direct interaction between the parties.

Finally, these cases carry the potential for physical danger to court personnel as well as to the parties. It is important that each session be conducted with this consideration in mind, and that, for example, a court officer be present at all times. [Back]

5:02 COMMENTARY

The role of an advocate at a hearing after notice is essentially the same as at an ex parte hearing, whether or not the other party is represented by counsel. See Guidelines 1:04, 2:08 and 3:09. [Back]

5:03 COMMENTARY

At the hearing after notice, as at the ex parte hearing in c. 209A proceedings, strict adherence to the common law rules of evidence is not required. Frizado v. Frizado, 420 Mass. 592, 597-598 (1995)(holding that "the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on."). See also Guideline 3:06. For example, the court can properly receive testimony that would otherwise be hearsay. ("The doctor said that I had a concussion.") Similarly, an answering machine tape containing threats spoken by the defendant may be admitted without a formal authentication procedure, if the court is satisfied that the witness recognizes the defendant's voice. [Back]

5:04 COMMENTARY

Proceedings under c. 209A are not criminal. Therefore, the reasonable doubt standard is inapplicable. Nor is there any basis for applying any of the special standards applicable in certain other types of non-criminal cases, e.g., the "clear and convincing" standard in certain mental health proceedings. Thus, the usual civil standard of preponderance of the credible evidence should be applied in c. 209A actions. Frizado v. Frizado, 420 Mass. 592, 597 (1995). The plaintiff must meet that burden before any order can issue.

The usual civil standard of preponderance of the credible evidence applied in regard to the initial issuance of a c. 209A order should also be applied in regard to orders after notice. In Smith v. Joyce, 421 Mass. 520 (1995), the Supreme Judicial Court applied this standard while also examining the facts of the case to assess a continuing fear of imminent serious physical harm. In Smith, the court upheld an order after notice in light of the defendant's "persistent and aggressive attempts" preceding the order. Id. at 522-523.

Certain Rescript opinions have reached varying results. In Pike v. Maguire, 47 Mass. App. Ct. 929 (1999)(Rescript), the Appeals Court examined the facts of the case to affirm the issuance of a permanent order. The Appeals Court held that "the judge was entitled to credit the testimony of the plaintiff that the defendant had kept her in fear for five years and to accept the reasonableness of her perception of that fear as a potential prelude to physical harm, particularly in light of the defendant's past abusive acts giving rise to the prior restraining orders, the recent smashing of the plaintiff's family vehicle's windshield, the notoriously volatile nature of child custody and visitation battles, and the defendant's agitated conduct in court." Id. (Footnote and citations omitted); cf. Jordan v. Westfield Division of the District Court Department, et al., 425 Mass. 1016 (1997) (Rescript)(abuse prevention order after notice vacated when evidence showed that defendant was in prison for convictions of kidnaping and assault and battery against plaintiff and plaintiff did not allege nor produce evidence to warrant a finding by a preponderance of the evidence that, since his incarceration, defendant's words reasonably placed plaintiff in fear of imminent serious physical injury); Larkin v. Ayer Division of the District Court Department, et al., 425 Mass. 1020 (1997) (Rescript)(order after notice, which the defendant was charged with violating, should not have issued where the plaintiff alleged that she suffered emotionally and from aggravated ulcers because the defendant sent her notices of future lawsuits and court proceedings). In Larkin, the court ruled that the plaintiff's assertions did not qualify as "abuse" under G.L. c. 209A. The court added, "assuming without deciding that, in some circumstances, physical manifestations or emotional harm resulting in the aggravation of pre-existing medical conditions can constitute 'physical harm', and therefore 'abuse', ... we are convinced that this is not such a case." Id. at 1021. [Back]

5:05 COMMENTARY

Due process requires that no order after notice be issued against a person without prior notice and the opportunity to be heard. If the defendant fails to appear, the court must have some basis on which to conclude that the defendant received notice, but, by ignoring the proceedings, waived the right to be heard. The best evidence that the defendant received notice is the return of service that the police are required to make. It should be considered the court's responsibility to raise this with the police if they routinely fail to meet this statutory duty.

If the case must be continued because there is no evidence that the defendant received notice, the same ten-day time limit as for ex parte orders should be observed. In essence, the ex parte order is being "reissued."

To prevent a long series of ex parte orders where service of notice cannot be made because of no knowledge of the defendant's whereabouts or any other reason, it should be kept in mind that notice can be given in several ways, including substitute service by publication. Notice by publication was approved in Bosse v. Bosse, No. 91-493, Supreme Judicial Court, Single Justice (December 10, 1991). See also Commentary to Guideline 4:07 and 6:03 and Zullo v. Goguen, 423 Mass. 679, 681 (1996), regarding court orders for alternative methods of service. In addition, "[n]othing indicates that in hand service is required by statute or considerations of due process, when ... actual notice has been provided." Commonwealth v. Montalvo, No.

95-P-454, Massachusetts Appeals Court, Memorandum and Order pursuant to Rule 1:28, May 13, 1996.

Even when the defendant does not appear, and there is evidence of notice, the court should also be satisfied that sufficient grounds exist for extending or modifying the order. The affidavit may be sufficient, but it may be supplemented by oral testimony.

Actual service of the order may not be required if the Commonwealth can establish that the defendant had actual notice of the terms of the order. See Commonwealth v. Delaney, 425 Mass. 587, 589-593 (1997), cert denied sub nom., Delaney v. Commonwealth, 522 U.S. 1058 (1998); See Commentary to Guideline 4:07. [Back]

5:06 COMMENTARY

General Laws c. 209A, § 4, last paragraph, provides that [i]f the defendant does not appear at such subsequent hearing [i.e. the hearing after notice], the temporary order shall continue in effect without further order of the court.

This provision contains no requirement that the plaintiff appear in order for the order to be continued. However, as in any civil case, the failure of the plaintiff to appear may be grounds for dismissal. There can be no order if the case has been terminated, and the plaintiff's failure to appear can be construed as grounds to terminate the action. Moreover, the practical consequences of extending every ex parte order where neither party appears for the hearing after notice would be serious.

However, the court is not compelled to dismiss the case. If there is an acceptable reason for plaintiff's absence, or some grounds to believe that such absence is not voluntary, the case and the order can be continued. This is true whether or not the defendant appears. Where circumstances warrant it, the case may be held while an advocate or victim-witness staff member contacts the plaintiff to determine the reason for the absence. [Back]

5:07 COMMENTARY

The same action must be taken regarding a defendant's warrant at the hearing after notice as at the ex parte stage. The major difference occurs when the defendant appears before the court for the hearing after notice. If the court fails to take the required and appropriate action, there may later be an accusation that the court is responsible for letting a defendant "walk out of the courthouse" when that defendant could have and should have been taken into custody. [Back]

5:08 COMMENTARY

The courts alone cannot protect a victim of family violence from an abuser who is undeterred by the threat of arrest or incarceration. A victim of such abuse is in the best position to decide what course of action will provide more safety. At a given time, a restraining order might exacerbate the plaintiff's danger. Thus, the plaintiff's decision to vacate an order must be respected. Similarly, a plaintiff may feel compelled for economic or family reasons to seek to vacate a protective order. There can be no guarantee of adequate support for families in all situations, and the court cannot ensure that children or others will not suffer if the protective order is maintained.

It is appropriate to provide plaintiffs who wish to vacate protective orders with information about supportive services which might assist them. This information might include referrals to shelters and support groups for victims of battering, information about applying for public assistance or for obtaining support from the defendant through the court and the Department of Revenue (See Guideline 10:01) and information about batterers' treatment programs and any other appropriate services of which court personnel are aware. For a current list of Certified Batterers' Treatment Programs, at Appendix D-1.

There are several instances in which a different order would serve the plaintiff's purpose as effectively as dismissing the original order. For example, a plaintiff might wish to attend some function with the defendant, or to see him or her outside the home. In that case, it would be appropriate to vacate the "no-contact" part of the order, but to leave the "stay away from the residence" order in effect. In another case, the plaintiff might wish for the defendant to come home, but still welcome a "refrain from abuse" order that did not interfere with that.

If the judge has reason to believe that vacating the protective order will place minor children in danger of physical harm or other abuse, the judge should advise the plaintiff that a report pursuant to G.L. c. 119, §§ 51A and 51B would be filed immediately. See Guideline 10:03.

Once a plaintiff has appeared before the court to vacate an order, it may be difficult to return no matter how great the danger. The judge should anticipate this by assuring the plaintiff that he or she may always return to the court to seek a new order or to bring criminal complaints for criminal activity.

Some courts ask the plaintiff to sign a form motion asking the court to dismiss the case. A District Court sample is provided at Appendix H. The signature on the form provides a record of the plaintiff's action and some means of assuring the plaintiff's identity. However, the process should not be made burdensome and care should be taken to assure the plaintiff that dismissing the instant case does not prevent returning to court to seek protection in the future. The suggested form specifically informs the plaintiff that he or she may return to the court at any time to seek a new restraining order or criminal charges, if appropriate. [Back]