Ex Parte Hearings
- Guidelines for Judicial Practice
Abuse Prevention Proceedings

Ex Parte Hearings

3:00 Ex Parte Hearing: General  [Commentary]

3:01 Scheduling of Ex Parte Hearings  [Commentary]

3:02 Subject Matter Jurisdiction  [Commentary]

3:03 Venue, Territorial Jurisdiction for c. 209A Complaints  [Commentary]

3:04 Closure of Ex Parte Hearings to the Public  [Commentary]

3:05 Court Action on Defendant's Default, Probation, Parole or Warrant Status: Involvement of the Probation Department at the Ex Parte Stage  [Commentary]

3:06 Rules of Evidence and Standard of Proof  [Commentary]

3:07 Conduct of the Ex Parte Hearing  [Commentary]

3:08 Repetitious Complaints  [Commentary]

3:09 Role of Advocates at Ex Parte Hearing  [Commentary]

3:00 Ex Parte Hearing: General. A plaintiff applying for a protective order under G.L. c. 209A should be brought before the court for a possible ex parte hearing as soon as is practicable.

Court personnel or others assisting the plaintiff in filing the complaint should not attempt to determine whether an ex parte hearing is appropriate. It is for the judge to decide whether the grounds are sufficient to conduct an ex parte hearing.

If a plaintiff is "unable to appear in court without severe hardship due to the plaintiff's physical condition," a representative of the plaintiff may, "appear in court on the plaintiff's behalf and file the requisite complaint with an affidavit setting forth the circumstances preventing the plaintiff from appearing personally." G.L. c. 209A, § 5. See Guideline 11:00. [Commentary]  [Top]

3:01 Scheduling of Ex Parte Hearings. Ex parte hearings should be held as soon as practicable after the complaint has been completed, signed, and the appropriate record checks are completed. Each court should schedule c. 209A ex parte hearings so as to minimize the time a plaintiff must wait.

Each First Justice, Regional Administrative Justice, or Chief Justice, in consultation with the Clerk-Magistrate or Register, should develop a clear policy on this issue and ensure that this policy is communicated to the other judges and court personnel involved. [Commentary]  [Top]

3:02 Subject Matter Jurisdiction. Jurisdiction under G.L. c. 209A extends to persons who:

(A) are or were married to each other;

(B) are or were residing in the same "household";

(C) are or were related by blood or marriage;

(D) have a child together, regardless of whether they have ever married or lived together;

(E) are or have been in a substantive dating or engagement relationship.

The basis for jurisdiction contained in Section (e) does not extend to the Superior Court. [Commentary] [Top]

3:03 Venue, Territorial Jurisdiction for c. 209A Complaints. The requirements set forth in section 2 of GL c. 209A regarding where abuse prevention actions must be filed and heard should be considered jurisdictional. That is, if these requirements are not met, the court should be considered to have no authority to act on the complaint. [Commentary]  [Top]

3:04 Closure of Ex Parte Hearings to the Public. All c. 209A hearings should be held in the courtroom and recorded. They should never be held in the Judge's Lobby or off the record.

In order to respect the privacy of the parties and the sensitive nature of the testimony, in most instances the preferred practice is to conduct the hearing at side bar.

Although the hearings should presumptively be open to the public, for good cause shown and based on specific findings indicated on the record, the court may close the courtroom. [Commentary]  [Top]

3:05 Court Action on Defendant's Default, Probation, Parole or Warrant Status: Involvement of the Probation Department at the Ex Parte Stage. General Laws c. 209A, § 7 requires that the judge "shall cause a search to be made" of the statewide registry of civil restraining orders and shall review the resulting data. The Clerk-Magistrate's or Register's office should also check the Warrant Management System.

If the judge receives information from either source that an outstanding warrant exists against the defendant, the judge "shall [(1)] order that the appropriate law enforcement officials be notified," (2) order that "any information regarding the defendant's most recent whereabouts . . . be forwarded to such officials," (3) "make a finding based on all of the circumstances, as to whether an imminent threat of bodily injury exists to the petitioner," and (4) if such a threat is found to exist, "notify the appropriate law enforcement officials of such finding and such officials shall take all necessary actions to execute any such outstanding warrant as soon as practicable." GL c. 209A, § 7.

In cases which appear to pose a particular risk of harm to the plaintiff, and where the defendant is already on probation, the judge should consider ordering that the supervising probation officer receive immediate notice of the issuance of the GL c. 209A order. [Commentary]  [Top]

3:06 Rules of Evidence and Standard of Proof. The common law rules of evidence, e.g., those regarding hearsay, authentication, and best evidence, should be applied with flexibility at the ex parte hearing, subject to considerations of fundamental fairness. The standard of proof is a preponderance of the evidence. [Commentary]  [Top]

3:07 Conduct of the Ex Parte Hearing. At the beginning of each hearing, the judge should ask the plaintiff whether there are any outstanding court orders involving the same parties in the same or a different court. The court should not order any relief that is inconsistent with any existing order in any other court. See Guideline 13:00 with regard to inconsistencies between an order issued by the District Court, the Boston Municipal Court or the Superior Court and a decision of the Probate and Family Court.

The court should then decide whether there is territorial and subject matter jurisdiction before proceeding with the ex parte hearing.

The ex parte hearing itself should consist of testimony by the plaintiff under oath as to the factual grounds for the complaint and the need for the relief sought. However, if the plaintiff has filed an affidavit that provides the court with substantive information supporting the complaint, the judge may incorporate the affidavit in the record to simplify the plaintiff's testimony. The court should question the plaintiff as necessary in order to obtain relevant information and assess credibility. The court should also hear the sworn testimony of any available witnesses offered by the plaintiff and may also receive any additional relevant and appropriate information provided by an advocate with personal knowledge who is sworn as a witness.

The court should decide the facts and determine whether there is a statutory basis for relief before addressing the nature of the relief sought. This need not be a formal or time-consuming process, and the judge need not necessarily announce each finding on the record. The court should not routinely refuse to grant particular types of relief provided in c. 209A. For example, plaintiffs who are entitled to relief such as stay away, no-contact, or vacate orders should not usually be referred to the Probate and Family Court for support or custody orders unless those issues are already the subject of a prior or pending order in that court. See Guideline 2:07.

See Guidelines 3:00 and 11:00 regarding ex parte plaintiffs who are unable to appear to file a complaint. [Commentary]  [Top]

3:08 Repetitious Complaints. The fact that a plaintiff has unsuccessfully sought relief previously, or has previously obtained protective orders but not sought to enforce them, is not relevant to the decision on the need for relief in response to the new complaint. Each complaint must be evaluated on its own merits to determine whether evidence exists to support issuance of a protective order. [Commentary]  [Top]

3:09 Role of Advocates at Ex Parte Hearing. Judges should permit advocates to stand with the parties whom they are assisting throughout the proceedings and to aid and support a party during the hearing to the extent that the party wishes it and the court deems it helpful. [Commentary]  [Top]

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