6:00 Commentary
Guidelines for Judicial Practice
Abuse Prevention Proceedings

This Guideline lists the types of orders that are expressly authorized by law. However, the list is not exclusive. The statute specifically provides that the court is not limited to the listed options and may issue any order warranted by the facts found. See Commentary to Guideline 4:01, Content of ex parte Orders which provides, "[w]hen 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 job." However, the defendant may not necessarily be in violation of such a provision if the plaintiff is not present.

Ordering a defendant to stay away from and to have no-contact with his or her minor children is tantamount to extinguishing parental rights, at least for the duration of the order. Before issuing such an order, the judge should assess the danger of abuse to the children independently from the danger of abuse to the plaintiff. 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 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). However, a defendant who abuses his or her child's other parent in the child's presence is likely abusing the child as well, by placing that child in fear of imminent serious physical harm and/or by causing emotional and psychological harm to the child. (See Guideline 2:04, Signed Statement by Plaintiff, regarding reasons to be set forth by plaintiff in an affidavit.) Accordingly, it may be necessary and appropriate to issue a no-contact order concerning the defendant's minor children. In certain cases, but particularly in a court other than the Probate and Family Court, the judge should make written findings to explain the reasons. Such findings will offer guidance to the Probate and Family Court in any later proceeding relating to custody of or visitation with the minor children, and will provide the best protection against the issuance of conflicting orders by the two courts. Cf. 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.

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

A non-custodial parent who has had access restricted to the child's school records by a permanent c.209A order may not request the child's records without violating the permanent c.209A order. G.L. c.71, § 34H(g). [Back]

In a case where social services can address some of the factors relating to abuse, such as alcohol or other substance abuse, the court may properly recommend or make referrals to such services, although these do not replace intervention to address the abuse. See Standards on Substance Abuse, Supreme Judicial Court (Approved April 28, 1998),Standard V at 18, at Appendix A-4. In addition, Section 3 of c. 209A expressly authorizes the court to "recommend to the defendant that the defendant attend a recognized batterers' treatment program." The Department of Public Health certifies batterers' treatment programs. St. 1990, c. 403, § 16. Similarly, the court may recommend services helpful to the victim. Such recommendations are not inconsistent with the protective purpose of c. 209A.

However, as discussed in Guideline 1:01, the purpose of c. 209A actions is to provide protection, when such is found to be warranted, and not to encourage reconciliation or joint counseling for the parties. Attempts by the court to require or even to promote reconciliation or joint counseling are inconsistent with the protective purpose of c. 209A. Such procedures can expose a victim to further abuse and can provide an abuser with a forum for continued contact and domination. At the very least, such matters should be left to the victim to decide. Moreover, the fear of being placed in such a situation may discourage or prevent a victim from seeking the court's protection at all. Chapter 209A, § 3 provides specifically that:

No court shall compel parties to mediate any aspect of their case. Although the court may refer the case to the family service office of the probation department or victim witness advocates for information gathering purposes, the court shall not compel the parties to meet together in such information gathering sessions.

The Standards on Substance Abuse provide guidance for the implementation of the Supreme Judicial Court's Policy Statement on Substance Abuse. Standard VI provides that, "[a]ll judges and court personnel should look for indications of substance abuse that may be a factor related to a case before the court." Standards on Substance Abuse, Standard VI, at 18. The affidavit in support of the application for abuse prevention pursuant to G.L. c. 209A may allege substance abuse or reveal facts suggesting substance abuse. Id. at 19. "In cases involving ... applications for restraining orders under G.L. c. 209A, ... substance abuse may be present if the parents are alleged to have left children unattended or to have frequently left children with friends or neighbors while staying out late, or if parents are charged with a criminal offense." Id. at 20.

If there is an indication that substance abuse is a factor in a case, at the earliest stage and at any stage, the court is encouraged to use tools for prompt screening. Screening is a mechanism for rapid initial determination whether it is appropriate for a person ... to participate in a treatment program .... In performing screening, courts should observe applicable constitutional and statutory safeguards, including the right to counsel and the privilege against self-incrimination.

Standard VII at 20.

When dealing with a batterer who is also a substance abuser, treatment for substance abuse should precede or be in conjunction with batterer's treatment or the batterer's treatment will be ineffective. Therefore, in cases involving batterers who are also substance abusers, the judge should order substance abuse treatment as well as a certified batterers' program.

Standard V at 18.

In addition to including in the order terms necessary to ensure the safety of the plaintiff, the judge or court personnel may recommend and refer the parties to appropriate agencies for victims of violence and certified batterers' programs. Among these may be counseling for substance abuse. Id. For a list of Certified Batterers' Intervention Programs, see Appendix D-1.

Further, pursuant to G.L. c. 209A, § 3:

if ordering visitation to the abusive parent, the court shall provide for the safety and well-being of the child and the safety of the abused parent. The court may consider: ... (c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a Certified Batterer's Treatment Program as a condition of visitation; (d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation ... (i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent ....[N]othing in this section shall be construed to affect the right of the parties to a hearing under the rules of domestic relations procedure or to affect the discretion of the probate and family court in the conduct of such hearing ....

G.L. c. 209A, § 3(d).

The court may indicate that modification of the terms of its order may, with the plaintiff's agreement, be contingent on the defendant's efforts to participate in and benefit from such services. G.L. c. 276, § 42A. [Back]

The court should not, as a matter of policy, routinely issue orders for less than a one year period over the plaintiff's objection. Also, there is usually no reason for the civil order to track the schedule of a related criminal case. Nor is it appropriate to "see how the relationship goes" if the law and the facts support the issuance of a protective order and the plaintiff wishes it to be effective for a full year. If the defendant feels at some future point that an order should be vacated, or its duration or terms limited, the defendant may move to modify the order. On the expiration date of an order after notice, the plaintiff may request a permanent order pursuant to G.L. c. 209A, § 3, which provides,

if the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order.

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, 430 Mass. at 636. See Guideline 6:08 and commentary thereto, Guideline 6:09, and commentary to Guidelines 12:10 and 12:11.

At the hearing, both parties should be informed that, as with all types of orders, the defendant must comply with a no-contact or vacate order unless and until those specific orders are vacated in writing by the court. The plaintiff has no authority to "waive" such orders, without going to court to ask to have them vacated, and the defendant who violates those orders is subject to mandatory warrantless arrest, regardless of the plaintiff's "consent."

Particularly where the defendant is not present at the hearing after notice, it may be useful to include a notice with the order served on the defendant regarding its effect. A sample District Court notice is provided at Appendix I.. [Back]

General Law c. 209A, § 7, second par., sets forth the required procedure for service of all orders issued under that law, including transmitting the documents to the appropriate police, service by the police, and the filing of a return of service. However, if the defendant is before the court, direct in-hand service is appropriate and obviates the need for police service. Whenever it is possible, defendants should be instructed to remain in the courtroom while the order is being finalized or typed. The plaintiff should receive a copy of the completed order before the defendant so that the plaintiff has the opportunity to leave the courthouse and avoid possible conflict with the defendant. A copy of the order should nonetheless be sent to the police for enforcement purposes.

If a defendant is before the court at any other time, whether for related or unrelated criminal charges, or for subsequent c. 209A hearings, or for any other reason, he or she should be provided with a copy of the order and a notation should be made on the order to that effect (Form FA-2A, para. B.3, at Appendix C).

If the defendant is not before the court when an order is issued, service is required. This Guideline urges in-hand service if the terms of the ex parte order have been changed. If the terms of the order have not been changed, the Guideline suggests that service may be in-hand or by leaving a copy of the order at the defendant's last and usual place of abode. Where new terms have been added, it is essential that the defendant be made aware of them. Otherwise the deterrent effect of the order is lost. However, it should be noted that the defendant who has been notified of the ex parte order by service of a copy of that order has been informed that, "[t]he Defendant may appear, with or without attorney, to oppose any extension or modification of this Order. If the Defendant does not appear, the Order may be extended or modified as determined by the Judge." Form FA-2, at Appendix C.

If the defendant is served with the ex parte order and fails to appear for the hearing after notice, the order will be valid, even if it is not served on the defendant. Commonwealth v. Delaney, 425 Mass. 587 (1997), cert denied sub nom., Delaney v. Commonwealth, 522 U.S. 1958 (1998). In Delaney, the court stated that, "evidence that the ex parte order delivered to the defendant's last and usual address was actually received warrants the conclusion that the defendant had actual knowledge of the terms of the extended order, as does the defendant's testimony that, following his arrest after the [order was extended], he was aware that there was a protective order against him." Id. at 593. In addition, the court stated that this provision on the ex parte order form provides that, "the defendant, who with reasonable inquiry could have discovered that the temporary order had been extended cannot be heard to complain that he was deprived of any opportunity to seek to have that extended order vacated." Id. at 592.

Both Commonwealth v. Delaney, supra, and Commonwealth v. Munafo, supra, involve ex parte orders that were extended. In Commonwealth v. Molloy, 44 Mass. App. Ct. 306 (1998), further appellate review denied, Commonwealth v. Molloy, 427 Mass. 1107 (1998), the Appeals Court reversed a conviction for violation of an order that had been extended annually, distinguishing between service regarding extension of temporary orders and such "successive annual extensions." Id. at 308. The court stated, "the extension of an annual order pursuant to [G.L. c. 209A] § 3, in contrast to a § 4 continuation of a temporary order, is ... by no means automatic, even if a defendant fails to appear." Id. at 309. The court added that there was no evidence at trial, "that anyone made a 'conscientious and reasonable effort to serve ... the defendant' or that some alternative means of service was used to notify him." Id. at 309.

In Commonwealth v. Crimmins, 46 Mass. App. Ct. 489 (1999), the court affirmed a conviction for violation of an order extended annually where the serving officer signed the return of service but failed to check off the box on the order form to indicate the means of service. Id. at 492. The court stated that where a return of service of an extension of an annual order fails to indicate the manner in which service was achieved, "[t]he Commonwealth can meet that burden with evidence of proof of service of the order by means reasonably calculated to reach the defendant." Id. at 491. The court opined that the serving officer knew the defendant's address and that three and one-half hour period between issuance of the extended order and the officer's time of return of service suggests that there was no difficulty serving the defendant. Further, the court stated, the three and one-half hour time frame also precluded the seeking of an order for substituted service if the officer found it difficult to serve the order. See also Guideline 6:08 and commentary thereto regarding standard of proof and service of extended orders and Guideline 8:01 regarding prosecution for violation of orders.

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 4:07 and 5:05. [Back]

Both parties have the right to ask the court to modify an existing order, by either increasing or decreasing the severity of the terms, or by terminating or vacating the order. Any motion to modify or vacate an order by the Probate and Family Court must be filed with the court and served on the opposing party in compliance with Rule 6(c) of the Massachusetts Rules of Domestic Relations Procedures. See Guideline 1:03 regarding application of rules of procedure.

Written notification from the court to the police directing them to destroy a vacated order, and compliance with such directive, are required by G.L. c. 209A, § 7, third par. However, vacated orders are not to be expunged from the Registry of Civil Restraining Orders. See, e.g., Vaccaro v. Vaccaro, 425 Mass. 153, 155-159 (1997).

In Vaccaro, "the Supreme Judicial Court held that the District Court has no authority to order that the name of a defendant in an abuse prevention proceeding under G.L. c. 209A be expunged from the Statewide Domestic Violence Registry." Vaccaro, 425 Mass. at 155-156. But see Faye v. Flemming, 48 Mass. App. Ct. 1113 (1999) (Rescript)(ordering that a mutual ex parte order issued without sufficient factual support and without written findings of fact be vacated nunc pro tunc.

If, at the hearing on a motion by either party to modify an order, it is determined that there has been no prior service on the other party giving notice of the hearing, the court should defer action on the motion until service is made and adequate notice is given, at least when the new terms are adverse to the absent party. However, action on a motion to modify filed by the plaintiff should not be deferred pending notice to the defendant if the grounds for an ex parte order are met, namely, the modification is needed because there is "a substantial likelihood of immediate danger of abuse." G.L. c. 209A, § 4.

The police must be given all modified orders and should be instructed to serve such orders on any defendant who was not given the modified order when before the court regardless of whether the defendant received notice of the hearing. Even if the defendant received notice of the hearing and failed to attend, service of the modified order is necessary to inform the defendant of any new protective restriction or requirement, and may be necessary for prosecutorial purposes should any new terms be violated.

Whenever a c. 209A order is modified or extended, the judge must check the box in Sections C, D, or E, next to the words, "Return of items ordered surrendered or suspended in A. 12 on Page 1 presents a likelihood of abuse to the Plaintiff." This box must be checked every time if the court determines that not taking or returning the license or guns or ammunition would present "a likelihood of abuse" to the plaintiff. G.L. c. 209A § 3B. This determination must be made irrespective of whether the plaintiff requests it. See Guideline 6:05.

See Guideline 13:00 regarding interdepartmental judicial assignments and modification of orders. [Back]

All ex parte orders that are issued under c. 209A must contain orders that the defendant's license to carry a firearm be suspended and, along with any guns and ammunition he or she controls, owns or possesses, be surrendered to the police. See Guideline 4:04.

The law provides that such a license suspension and gun surrender order must be issued "upon the continuation and/or modification of an order" under a "likelihood of abuse" standard. At the time of the hearing after notice, or at any time when an order is continued or modified, the judge must check the box in Sections C, D, or E of the Order (Form FA-2A), next to the words, "Return of items ordered surrendered or suspended in A. 12 on Page 1 presents a likelihood of abuse to the Plaintiff." This box must be checked every time, if the court determines that not taking or returning the license or guns or ammunition would present "a likelihood of abuse" to the plaintiff. G.L. c. 209A, §§ 3B and C. This determination must be made irrespective of whether the plaintiff requests it and the box indicating that the required finding has been made must be checked, even if the judge has indicated that the ex parte order will continue without modification. G.L. c. 209A, § 6(7) mandates that police arrest without a warrant defendants who violate gun orders.

For a discussion of Federal Gun Law on this subject, see commentary to Guideline 4:04. Also at the commentary to Guideline 4:04 is a discussion of 1998 amendments to G.L. c.140, § 131 which pertain to the issuance or revocation of gun licenses to individuals subject to c. 209A orders or similar protection orders issued by another jurisdiction. [Back]

Chapter 209A, § 3(d), as amended by St.1998, c. 179, § 5, provides that if the Probate and Family Court finds by a preponderance of the evidence that credible evidence was presented that a pattern or serious incident of abuse toward a parent or child has occurred, a rebuttable presumption is created that it is not in the best interests of the child to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent. This presumption may be rebutted if the court finds that awarding custody to the abusive parent is in the best interests of the child.

"Abuse" as defined in G.L. c. 208, § 31A, added by St. 1998, c. 179, § 3, occurs when the defendant has engaged in one or more of the following acts: attempted to cause bodily injury to the other parent or to the child; has caused bodily injury to the other parent or to the child; or placed the other parent or the child in reasonable fear of imminent bodily injury. Section 31A defines a "serious incident of abuse" as engaging in action that: attempts to cause serious bodily injury to the other parent or to the child; causes serious bodily injury to the other parent or to the child; places the other parent or the child in reasonable fear of imminent serious bodily injury; or causes the other parent or the child to engage involuntarily in sexual relations by force, threat or duress.

"Bodily injury" and "serious bodily injury" are defined for purposes of G.L. c. 208, § 31A by G.L. c. 265, § 13K. Bodily injury is "that which causes substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin...." Serious bodily injury is defined as "bodily injury which results in a permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ, or substantial risk of death."

For the purposes of G.L. c. 209A, § 3(d), the issuance of one or more orders pursuant to c. 209A does not in and of itself constitute a pattern or serious incident of abuse. In addition, an ex parte order or orders will not be admissible to show whether a pattern or serious incident of abuse has occurred. Ex parte orders may, however, be admissible for other purposes as the court may determine. Finally, the underlying facts upon which an order or orders issued pursuant to c. 209A was based may form the basis for a finding by the Probate and Family Court that a pattern or serious incident of abuse has occurred.

Chapter 209A, § 3(d) requires that the court enter findings within 90 days indicating the effects of the abuse on the child and that the order is in the best interests of the child and provides for the child's safety and well-being when issuing any temporary or permanent custody order when there has been a pattern or serious incident of abuse. These findings must be made in the following circumstances: 1) if there is a pre-existing custody order and the court finds by a preponderance of the evidence that a pattern or serious incident of abuse has occurred such that the court changes custody from the defendant to the plaintiff; or 2) if there is no custody order and the court finds by a preponderance of the evidence that a pattern or serious incident of abuse has occurred and the court grants custody to the plaintiff. The findings should not be made until the full hearing since the determination of a pattern or serious incident of abuse should not be made ex parte. See Appendix N for the findings form.

If a pre-existing custody order exists and it will not be modified by the c. 209A order, the custody presumption statute does not apply to the c. 209A order. If the court finds that the plaintiff has been the perpetrator of the abuse, then the c. 209A should be dismissed and the custody issue should be heard in another proceeding. See Guideline 12:05A. [Back]

It is true that the issue of visitation does not relate directly to the fundamental issue before the court, namely protection from abuse, and that c. 209A does not provide any jurisdictional basis for an order in favor of the defendant. However, this Guideline recommends that the District Court, Boston Municipal Court and Superior Court allow the parties to attempt to resolve the issue of visitation consensually, if possible. Two caveats apply. First, such an agreement process must be free of any coercion, domination or intimidation by the defendant. The plaintiff must inform the court that he or she agrees to discuss the matter, and the discussion should take place before the court so that the court can monitor the process. Second, even if the agreement is consensual, the court should prevent its use by an appropriate order if it feels that it will, or could, expose the plaintiff or the children to abuse.

If no agreement between the parties is possible, or if one is reached but its use is prevented by the court, the defendant should be told that any Probate and Family Court visitation order sought must be consistent with the protective order, as it applies to the plaintiff. A Probate order which orders visitation but does not modify the original court's no-contact order will not supersede the original court's no-contact order, which will still be in effect. For example, if the protective order forbids contact, the defendant will be subject to the possibility of immediate arrest upon arrival at the plaintiff's residence to pick up the child for visitation, notwithstanding a Probate and Family Court order purporting to allow the defendant to go to the home. In fairness to the defendant, and to avoid the possibility of confusion and danger, the judge should be sure that both parties fully understand this point.

If the Probate and Family Court does not modify the order pursuant to Guideline 13:00, the parties may return to the original court to modify a no-contact order, so as to allow compliance with an otherwise inconsistent Probate and Family Court visitation order. However, no "stipulation" of the parties in the Probate and Family Court will itself serve to modify any outstanding order of another court, or require the original, issuing court to modify its order. If the parties seek to modify the original no-contact order, the judge should ask the plaintiff if reduction in the terms of the protective order is what the plaintiff actually desires. If not, the original court order should not be modified, unless the evidence otherwise warrants a modification. The original court is responsible for the protection terms of the order (or the lack thereof), notwithstanding discussions that may have occurred between the parties in proceedings before the Probate and Family Court. The issue of protection should not be confused with the issue of visitation, and the latter should be considered subordinate to the question of protection. If the plaintiff does agree to the modification of the protective order, the modification should ordinarily be allowed.

As in other instances where the parties to an order issued by one court seek relief in another court and the issue of mutual restraining orders arises, Guideline 6:07 should be consulted.

It should be noted that even if the parties resolve the issue of visitation consensually, if the non-custodial parent's access to the child or custodial parent is restricted (e.g., a no-contact order is issued), the parent is restricted from contacting the child's school without a written order from the court specifically allowing access. In fact, the statute provides "[r]equests for information made pursuant to this section which are made while a permanent protective order restricting access to the custodial parent or to any child in the custodial parent's custody is in effect shall constitute a violation of said protective order and be subject to the applicable penalties." G.L. c.71, § 34H(g).

For visitation matters before the Probate and Family Court Department, see Guideline 12:00. [Back]

The law requires that the court issue specific written findings whenever a mutual restraining order or mutual no-contact order is issued. These findings should explain the basis for concluding that each party has abused the other and that the protective terms imposed against each party are warranted. The terms must be clear and specific so that the police will be able to determine which party is in violation, if a violation is alleged. Failure to make the required specific written findings may render the order invalid. See Jones v. Justices of the West Roxbury District Court, et al., No. 93-0009, Supreme Judicial Court, Single Justice (March 24, 1993). See also Faye v. Flemming, 48 Mass. App. Ct. 1113 (1999) (Rescript)(finding that a mutual ex parte order issued without sufficient factual support and written findings of fact should be vacated nunc pro tunc).

The court has a responsibility to decide who is the primary aggressor, who is in danger from whom, and who needs the court's protection. Only in the situation where each party is genuinely in danger from the other and proves that circumstance by a preponderance of the evidence should a mutual order be issued.

If such an order is issued, the police must have clear instructions about how it is to be enforced. For example, an order requiring A to stay away from B's address and B to stay away from A's address can be enforced. However, an order which orders both A and B to stay fifty yards away from one another cannot be enforced readily, because the responding officer often will not be able to say who approached whom.

The statute clearly appears to require that a single mutual order be issued, rather than separate orders in favor of each party. However, if this is not possible as a practical matter, given the limitations of space on the order form (which is designed for only one defendant), the Guideline recommends cross-referencing.

Since specific findings are required to support the court's findings regarding each party, it is obvious that a mutual order should not issue at the ex parte stage of the original plaintiff's action.

Consecutive orders from different courts involving the same parties in reverse roles should not be considered "mutual orders." The second court, considering a complaint filed by a party who is already the subject of a previous order, cannot amend or supersede the first order. Its order, if any, will run only in favor of the new plaintiff. The judge in the second court will not know the findings and reasons for the first court's order against that party, nor can the second court give any reasons for the first order issued by the other court. Finally, the second court cannot change the first order.

Instead, if the second court has reason to believe that an order may be pending in another court against the plaintiff, in favor of the person now listed as defendant, the second judge should question the plaintiff about this and, if necessary, check the plaintiff's name on the Statewide Registry of Civil Restraining Orders. If the new plaintiff is the defendant listed in such an order and does not appear to be in immediate danger, the court may refer him or her back to the court that issued that order. The plaintiff can then seek relief in the first court by means of a motion to modify the existing order to a mutual order.

In those cases in which two different courts within the same Department have jurisdiction over the different plaintiffs, the Regional Administrative Justice or Chief Justice may designate one judge to hear both cases for both courts and decide which, if any, orders should issue. If two courts in different court departments, not including the Probate and Family Court, have jurisdiction over the different plaintiffs, a request may be made to the Chief Justice for Administration and Management to designate one judge to hear both cases. If two courts in different Departments, one of which is the Probate and Family Court, have jurisdiction over the different plaintiffs, the cases should be the subject of interdepartmental judicial assignment under Guideline 13:00. In any of these instances, if the designated judge, after hearing, decides to issue mutual orders, that judge should be in a position to make the written findings required by the statute.

If a second court hearing the new complaint, for whatever reason, does not refer the plaintiff back to the original court, any resulting order in favor of that new plaintiff cannot be inconsistent with the terms of the first order. The second order should also, in specific terms, acknowledge the existence of the first and specifically provide guidance on any enforcement issues that may arise.

If the plaintiff in the new complaint is seeking relief in the same court that issued the pending order, the matter should be treated as a motion for modification in that pending case, and the relief, if ordered, should result in mutual restraining orders. [Back]

During the pendency of an existing order, or at the time scheduled for the order to expire, the plaintiff may seek to extend the order. No new application or complaint is required. However, the plaintiff should file an affidavit which explains the continued need for a protective order. Moreover, so long as the court had jurisdiction for issuing the original order, the fact that the plaintiff may have moved out of the jurisdiction is not a reason for denying the extension, or requiring the plaintiff to reapply in the court within whose jurisdiction he or she now lives.

No new incident of abuse is required for extending the order. General Laws c. 209A, § 3 states that "the fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, or allowing an order to expire or be vacated, or for refusing to issue a new order." Later in the same section, the statute provides that a court "shall not deny any complaint filed under this chapter solely because it was not filed within a particular time period after the last alleged incident of abuse." The only criterion is a showing of continued need for the order.

If the plaintiff appears in court seeking to extend the order "at the date and time the order is to expire," G.L. c. 209A, § 3, and the defendant was served with notice of that scheduled hearing in the order, no new notice need be sent, and the same order may be extended. The extended order must be served upon the defendant in the same manner as the prior order. The court should ask if the plaintiff knows of any new address for the defendant.

This guideline has been revised to clarify that orders may be extended permanently pursuant to G.L. c. 209A, § 3. 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, 430 Mass. at 636. See Guideline 6:02 and Commentaries to Guidelines 12:10 and 12:11.

In prosecutions for violations of orders, actual service of an extended order may not be required if a defendant was served with a copy of the ex parte order. See Commonwealth v. Delaney, 425 Mass. 587, 591 (1997), cert. denied sub nom., Delaney v. Commonwealth, 522 U.S. 1058 (1998). See Commentary to Guideline 4:07. [Back]

When a plaintiff appears in court on the date of the expiration of an order issued after notice, the court has three options. The first is to permit the order to expire without further action. The second is to extend the order for "any time reasonably necessary" to protect the plaintiff. G.L. c. 209A, § 3(e). The third option is to make the order permanent. Crenshaw v. Macklin, 430 Mass. 633, 635 (2000). [Back]