Guidelines for Judicial Practice - Abuse Prevention Proceedings

2:00 Designation of Staff. The Clerk-Magistrate or Register and the Chief Probation Officer in each court should designate particular personnel to respond to plaintiffs seeking relief under G.L. c. 209A. [Commentary] [Top]

2:01 Assisting the Plaintiff. The primary role of court personnel when a plaintiff seeks relief under G. L. c. 209A is to provide assistance in filing the complaint. The plaintiff should be questioned briefly about the nature of the case and then assisted in completing the complaint form and other documents. Court personnel should proceed with patience, respect, professionalism and objectivity.

Only the judge should rule on the facts of domestic abuse cases. Court personnel should not attempt to "screen out" complaints or investigate the accuracy of allegations. Nor should they challenge a plaintiff's motives or intent or attempt to refer the plaintiff to service providers in lieu of filing the complaint. [Commentary] [Top]

2:02 Ensuring Privacy. A person requesting relief under G.L. c. 209A should be directed by the person designated to receive such requests to an area, preferably separate, where the matter can be discussed and the complaint form completed with as much privacy as possible. At a minimum, the matter should be discussed out of the hearing of all persons, court personnel and general public alike, who are not directly involved. [Commentary] [Top]

2:03 Completing the Complaint, Obtaining Required Information. Staff members designated to assist plaintiffs seeking to file c. 209A complaints should explain, as necessary, the various sections of the complaint form that the plaintiff must fill out.

Each plaintiff should complete an affidavit describing the facts that form the basis for the relief sought. Doing so is required by statute only when an order is requested during non-court hours. However, requiring the affidavit in each case is recommended. See Guideline 2:04. In the Probate and Family Court, a request for an ex parte order requires the filing of an affidavit. See Mass. R. Dom. Rel. P. 65 (a).

The plaintiff should enter the appropriate information on a form entitled "confidential information form," at Appendix C. The information provided on this form is accessible only by the plaintiff, those authorized by the plaintiff, those authorized by statute and by court order. See Guideline 1:05.

Each plaintiff should also complete a form, called the defendant information form, providing all of the available information about the defendant that is necessary for a check of the Statewide Registry of Civil Restraining Orders and for service of an order, should one be issued.

If the case involves the care and custody of a child, the plaintiff should be assisted in completing the Affidavit Disclosing Care and Custody Proceedings that is required by Uniform Trial Court Rule IV. [Commentary] [Top]

2:04 Signed Statement By Plaintiff. Plaintiffs should file a signed, sworn statement ("Affidavit") describing the factual basis of the complaint on the reverse side of the original court copy (top sheet) of the complaint form (Form FA-1, copy included at Appendix C). See Guideline 2:03 regarding affidavits in ex parte cases. Plaintiffs should be encouraged to provide as much information as possible about the abuse, including specifics on, at least, the most recent incident of abuse and the most serious incident, even if the most serious incident occurred some time ago.

If the plaintiff seeks an order against the defendant for no-contact or to stay away from the defendant's minor children, the grounds for that request should be set forth on Page 2 of the Complaint, Form FA-1A (copy included at Appendix C). There should be independent support for issuance of no-contact orders involving the defendant's minor children. [Commentary] [Top]

2:05 Processing the Complaint. Persons seeking to file complaints under c. 209A should not be denied the right to do so. Only when it is absolutely clear that the facts alleged by the plaintiff do not fall within the terms of c. 209A, or that the court lacks jurisdiction over the matter, should court personnel indicate that the court cannot grant the relief sought. Even in such cases, if the plaintiff persists, the form should be completed and the matter brought before the court. [Commentary] [Top]

2:06 Repetitious Complaints. No person seeking relief under G.L. c. 209A should be denied the right to file a complaint. Court personnel should treat plaintiffs with respect and courtesy, regardless of how many times the plaintiff has appeared before the court seeking relief and regardless of the outcome of such proceedings. [Commentary] [Top]

2:07 Referral To and From Other Courts: Avoiding Inconsistent Orders. If the court has jurisdiction based on the facts alleged, the court should accept the complaint and proceed to hear and rule on the matter. However, the court should not order relief inconsistent with any existing order. At the beginning of each hearing, whether an ex parte or a hearing after notice, in order to avoid issuing inconsistent orders, the judge should ask the parties whether there are any outstanding court actions or orders in the same or a different court.

Plaintiffs seeking relief initially in the District Court, the Boston Municipal Court or the Superior Court should not be referred to the probate and family court for any relief that is within the initial court's jurisdiction, regardless of marital status or the involvement of children, except as provided in the commentary to Guideline 3:07. See also Guidelines 4:01, 5:01 and 6:00.

While plaintiffs seeking relief under c. 209A generally should not be referred from one court to another court with jurisdiction, a plaintiff who has been referred to one court by another court within the same or a different department should not be sent back to the referring court, even if the latter had jurisdiction. Such actions should proceed in the referral court as though the plaintiff had come there originally.

In all cases, the question of whether to refer a plaintiff to another court should be made by a judge. [Commentary] [Top]

2:08 Role of Advocates in Assisting Parties. The court should support the participation of advocates at each stage of the c. 209A process, regardless of whether such persons are volunteers from a local advocacy group, law students, employees of the district attorney or of some other state, community or legal service agency, or friends or family members of either party. Where possible, such support should include providing an area of the courthouse where advocates can operate, allowing sufficient time in the complaint filing process for an advocate to speak to the party, individually or, if there are multiple parties, in a group setting, and to assist the party in filing the complaint, and permitting the advocate to accompany the party, when so requested, to the courtroom. See Guidelines 1:04, 3:09 and 5:02. Advocates should coordinate their efforts with the appropriate staff in each court. [Commentary] [Top]

2:09 Inappropriate Referrals for Relief from Police and Others. If a practice develops whereby police, private or public agencies, or individuals are referring persons to the court for types of relief or in types of cases that are not within the legal scope of G.L. c. 209A, the Clerk-Magistrate or Register, or where appropriate, the First Justice, Regional Administrative Justice, or Chief Justice should contact the Chief of Police or other proper person to resolve the problem.

Similarly, if the police are not taking other actions required by the law or orderly procedure, such as timely and efficient service of the ex parte orders, delivery of a copy of an order issued when the court was closed on the next court day to the court with venue and jurisdiction over the matter, or inappropriately referring plaintiffs to the court to seek criminal complaints when immediate, warrantless arrest is required, or otherwise, it is appropriate for the court to contact the proper person to resolve the problem. [Commentary] [Top]

2:10 Check of the CARI System, Statewide Registry of Civil Restraining Orders and other Probation Department Involvement at the Complaint Stage. As soon as the complaint is filed, the court's probation department must check the Court Activity Records Information database (CARI), including the Statewide Registry of Civil Restraining Orders, and provide the judge with information on any criminal record which the defendant has in Massachusetts and any previous or current abuse prevention orders. Once an order is issued by the court, the probation department must, on the same day, record that order in the same Statewide Registry of Civil Restraining Orders. Similarly, once a person files a certified copy of a protection order issued by another jurisdiction, along with an Affidavit, the probation department must also record that order in the Statewide Registry of Civil Restraining Orders on the same day. See Appendices A-2, A-3 and A-4, and guidelines 1:05, 2:01, 2:04, 2:12 and 14:00.

The probation department may also be used to gather from the parties certain required information, e.g., information identifying the defendant or financial data, or to perform support guideline calculations. However, parties should not be referred to the Probation Department, or elsewhere, for possible diversion of the complaint or for mandatory mediation or couple's counseling of any kind. See guidelines 1:01, 4:05 and 6:01. [Commentary] [Top]

2:11 Check of the Warrant Management System. When the complaint is filed, the probation department should check the CARI system and the Clerk-Magistrate's or Register's Office should check the Warrant Management System to see if there exists an outstanding warrant for the defendant's arrest. If so, that information should be provided to the judge with the c. 209A case file. [Commentary] [Top]

2:12 Referral for a Criminal Complaint. Court personnel should inform the plaintiff that G.L. c. 209A proceedings are civil in nature and that violations of the orders issued under c. 209A are criminal in nature, as required by G.L. c. 209A, � 3A. See Guidelines 8:00-8:12.

In all cases, particularly those involving allegations of serious injury, court personnel should discuss with the plaintiff the procedure for seeking a criminal complaint in the District Court or Boston Municipal Court. A plaintiff who wishes to do so may immediately file an application for a criminal complaint in the Clerk-Magistrate's office in the District Court or Boston Municipal Court, or may be referred to the District Attorney's office, the police, or advocates within the court to discuss the ramifications of that decision. If a complaint application is filed alleging a felony, or a misdemeanor involving the threat of imminent harm, the hearing may proceed immediately, without notice to the accused and a right to be heard. G.L. c. 218, � 35A. If probable cause is found, a warrant rather than a summons can be issued. See Mass. R. Crim. P. 6.

Procedures for a criminal complaint should be in addition to, and not in lieu of, receiving and processing the c. 209A complaint.

In the District Court or Boston Municipal Court, whenever possible, the hearing on the issuance of a criminal complaint should be scheduled to coincide with the c. 209A ex parte hearing. Where the complaint hearing will be scheduled with notice to the accused, the complaint hearing should be scheduled for the same day as the hearing after notice on the c. 209A complaint.

Violations of protection orders issued by other jurisdictions are also subject to criminal prosecution. See Appendices A, A-1, A-2, A-3 and A-4, and Guideline 14:00. [Commentary] [Top]

2:13 Action Where Previous Order in Effect. If a person seeks relief under G.L. c. 209A, and the court learns that a previously issued protective order, from any court, involving the same parties and the same terms, is already in effect, that person should be informed of the right to file an application for a criminal complaint for violation of that order. The application must be filed in the Boston Municipal Court or in the District Court where the order was issued or in whose jurisdiction the alleged violation occurred. The hearing on such an application should be conducted on a priority basis, without notice to the accused, where this is appropriate under the provisions of G.L. c. 218, � 35A. If probable cause is found, the complaint should be promptly issued, along with a warrant rather than a summons, as appropriate under Rule 6 of the Massachusetts Rules of Criminal Procedure.

The criminal complaint procedure should be followed, even if it appears that the police should have made an immediate warrantless arrest.

Violations of protection orders issued by other jurisdictions are also subject to criminal prosecution. See Guideline 14:00. [Commentary] [Top]

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Last Updated on May 27, 2004 2:13 PM