General
- Guidelines for Judicial Practice
Abuse Prevention Proceedings

General

1:00 In General   [Commentary]

1:01 Protective Purpose of c. 209A  [Commentary]

1:02 Due Process Considerations  [Commentary]

1:03 Procedural Rules; Discovery  [Commentary]

1:04 Court's Relationship With Local Advocacy Groups  [Commentary]

1:05 Public Access to c. 209A Case Files  [Commentary]

1:06 Minors As Parties in c. 209A Actions  [Commentary]

1:07 Non-English Speaking Parties in c. 209A Actions  [Commentary]

1:00 In General. These guidelines apply to proceedings under the Abuse Prevention Act, G.L. c. 209A, in the District Court, Boston Municipal Court, Probate and Family Court and Superior Court Departments of the Trial Court and to related criminal proceedings in the District Court and Boston Municipal Court departments. All proceedings under c. 209A should be undertaken with sensitivity to both the personal and emotional nature of the issues involved and the need to ensure due process. The guidelines describe protection orders issued under c. 209A in three categories:

Emergency Orders. Section 5 of c. 209A provides temporary relief, "when the court is closed for business or the plaintiff is unable to appear in court because of severe hardship due to the plaintiff's physical condition ...." if relief is granted under § 5 without the filing of a complaint, a complaint shall be filed in court on the next business day. Orders issued pursuant to § 5 are described in these guidelines as "emergency" orders. See Guideline 11:00. The emergency order should expire at the end of the next court business day.

Ex Parte Orders. Section 4 of c. 209A provides for the issuance of protective orders without notice to the defendant if the plaintiff comes before the court and "demonstrates a substantial likelihood of immediate danger of abuse ...." orders obtained pursuant to c. 209A, § 4 have a maximum duration of ten court business days and are described in these guidelines as "ex parte" orders. See Guidelines 3:00 - 4:07.

Orders After Notice. Protective orders issued under c. 209A that are not issued on an emergency or ex parte basis require notice to the defendant and an opportunity to be heard. Such orders are described in these guidelines as "orders after notice." They arise in four different contexts: (1) when no ex parte order has been issued, but the defendant is present for the hearing (e.g. at an arraignment); (2) within ten court business days after an ex parte hearing and order; (3) on motion for modification by either party during the life of the order; and (4) on the expiration date of an order that was issued after notice. Initial orders after notice must have a maximum duration of one year. Orders issued on the expiration date of a previous order after notice may be for any additional time necessary to protect the plaintiff or may be permanent. [Commentary] [Top]

1:01 Protective Purpose of c. 209A. The fundamental purpose of proceedings under c. 209A is to adjudicate the need for protection from abuse and, if that need is found to exist, to provide protective court orders. Given this protective purpose, it is inappropriate for the court in c. 209A proceedings to attempt to reconcile the parties or to mediate disputes.

The court may provide information about substance abuse, psychological or psychiatric services, or batterers' treatment programs, but such services are not a substitute for protective relief in the form of specific orders.

For a list of batterers' intervention programs certified as of September 26, 2000, see Appendix D-1. [Commentary]  [Top]

1:02 Due Process Considerations. The adjudication of cases by a neutral court is a fundamental element of due process. In c. 209A cases, as in all other court proceedings, the court is responsible for protecting the rights of the accused and adjudicating each complaint on a case-by-case basis. The scope and seriousness of the problem of domestic abuse in general must not be permitted to affect the individual adjudication of cases. [Commentary]  [Top]

1:03 Procedural Rules; Discovery. In the Probate and Family Court Department, the Massachusetts Rules of Domestic Relations Procedure apply to c. 209A actions. In the Boston Municipal Court, District Court or Superior Court Departments, the provisions of the Massachusetts Rules of Civil Procedure may be applied.

There should be no discovery proceedings in c. 209A actions, except in extraordinary circumstances, by order of the court, after notice and an opportunity for the opposing party to be heard. Discovery orders are within the court's discretion and should be issued only after hearing and only upon a showing that such discovery is necessary to provide specific information essential to the adjudication of the case or the issuance of particular protective orders. [Commentary]  [Top]

1:04 Court's Relationship With Local Advocacy Groups. Courts should be open and responsive to contact from advocacy groups concerned with the issues of domestic violence. Meeting with representatives of such groups to discuss appropriate matters can be constructive for judges and other court personnel, as well as for the members of the groups themselves.  [Commentary]   [Top]

1:05 Public Access to c. 209A Case Files. Public access to documents and case files in c. 209A proceedings is governed by c. 209A itself and by the law and procedures for court impoundment of court documents generally.

All case records of cases involving minor plaintiffs or defendants must be withheld from public inspection except by order of the court. See G.L. c. 209A, § 8 and Guideline 1:06.

Pursuant to c. 209A, § 8, as recently amended by St. 2000, c. 236, § 24, certain portions of all cases are "confidential" and shall be withheld from public inspection except by order of the court. The confidential information consists of the plaintiff's residential address, residential telephone number and workplace name, address and telephone number. However, the plaintiff's residential address and workplace address shall appear on the order and be accessible to the defendant and the defendant's attorney unless the plaintiff specifically requests that the information be withheld from the order.

Confidential information shall be accessible at all reasonable times to the plaintiff and plaintiff's attorney, to those specifically authorized by the plaintiff to obtain such information and, if necessary in the performance of their duties, to prosecutors, victim-witness advocates, domestic violence victim counselors, sexual assault counselors, and law enforcement officers.

The provisions of Section 8 apply to any protection order issued by another jurisdiction which is filed with the court pursuant to G.L. c. 209A, § 5A. Confidential portions of the record are not deemed to be public records under the provisions of G.L. c. 4, § 7, clause 26. [Commentary]   [Top]

1:06 Minors As Parties in c. 209A Actions. Minors may be parties to c. 209A actions, with some restrictions. If a minor plaintiff appears in court without an adult seeking a restraining order against someone who is not a family member or a caretaker, the judge should attempt to secure the presence of a parent or guardian. If this is not practicable, the judge should consider appointing a guardian ad litem for the child. However, particularly in the case of a mature minor, the court should not refuse, solely on the basis that no adult is present, to issue a protective order if there is danger to the child from the defendant.

If the defendant against whom a child seeks a restraining order is a family member or a caretaker, the court should also consider referring the matter for a report to the Department of Social Services under G.L. c. 119, §§ 51A and 51B. See Guideline 10:03. If the defendant is the child's only caretaker, a guardianad litem should usually be appointed for the child.

If the defendant in a c. 209A action is a minor, the court may order the defendant to refrain from abusing the plaintiff and to refrain from contacting the plaintiff. The statute does not explicitly provide that the court may order a minor defendant to vacate and stay away from his or her residence, although some courts infer that authority from the overall protective purpose of the law. In a situation where the plaintiff is the victim of abuse by a minor defendant who lives in the same household, the court should also refer the plaintiff for delinquency, criminal, mental health or child in need of services complaints against the minor defendant. See Guideline 10:05.

All case records of cases involving minor plaintiffs or defendants must be withheld from public inspection except by order of the court. See G.L. c. 209A, § 8.  [Commentary]   [Top]

1:07 Non-English Speaking Parties in c. 209A Actions. Non-English speaking parties have a right to the assistance of a qualified interpreter. See G.L. c. 221C, § 2. In emergency situations, particularly at an ex parte hearing, if no qualified or certified interpreter is present in court, individuals who have accompanied the plaintiff to court, or who happen to be in the court and speak the plaintiff's language, may be asked to assist the plaintiff by interpreting for the plaintiff. An individual who has accompanied the defendant to court, or who happens to be in court, may be asked to assist the defendant by interpreting for the defendant. If no interpreter is available, the court may seek assistance from a local police department, advocacy group, or other resource. All interpreters should be sworn and should give their names for the record. In an emergency situation where no local resources are available, the Office of Court Interpreter Services at the Trial Court Administrative Office may be able to provide translation of a written complaint or interpretation of an explanation of court procedures via facsimile or telephone.

The Commission for the Deaf and Hard of Hearing is statutorily responsible for providing interpreters for American (and other) sign languages. See G.L. c. 6, §§ 194 and 196.

However, neither the defendant in the c. 209A action, nor anyone accompanying the defendant to court, should ever be permitted to interpret for the plaintiff, regardless of the

difficulty of locating an interpreter. Similarly, the plaintiff should never be permitted to interpret for the defendant. [Commentary]   [Top]

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