Ex Parte Orders
- Guidelines for Judicial Practice
Abuse Prevention Proceedings

Ex Parte Orders

4:00 Duration of Ex Parte Orders  [Commentary]

4:01 Content of Ex Parte Orders  [Commentary]

4:02 Ex Parte Orders to Vacate  [Commentary]

4:03 Ex Parte Support and Compensation Orders  [Commentary]

4:04 Ex Parte Orders to Surrender Guns, Licenses to Carry Firearms and FID Cards  [Commentary]

4:05 Reconciliation  [Commentary]

4:06 Information for the Plaintiff  [Commentary]

4:07 Service of Ex Parte Order On Defendant  [Commentary]

4:00 Duration of Ex Parte Orders. Orders entered upon an ex parte hearing should have an express duration of no more than ten court business days. They should be effective through the date set for the hearing after notice. [Commentary]  [Top]

4:01 Content of Ex Parte Orders. If the plaintiff demonstrates a "substantial likelihood of immediate danger of abuse," the court should issue an ex parte order. The court may enter any order that it deems necessary to protect a plaintiff from abuse, including, but not limited to, any of the orders expressly authorized by Section 3 of Chapter 209A. Such orders must include the surrender of guns, ammunition and gun licenses. See Guideline 4:04. Judges should proofread the order before signing it and should review the relief ordered with the plaintiff. [Commentary]  [Top]

4:02 Ex Parte Orders to Vacate. The court's decision to issue an ex parte order to the defendant to vacate the household residence should be based solely upon the plaintiff's need for such an order as a means of protection from abuse. The defendant's property interest in the household residence is irrelevant to the issuance of an order to vacate.

The court may also order the defendant to vacate a multiple family dwelling and a workplace. Vacate orders include the requirement that the defendant stay away from the place vacated. [Commentary]  [Top]

4:03 Ex Parte Support and Compensation Orders. Orders issued upon ex parte hearings should not ordinarily include terms of support or compensation for damages. Claims for such relief should be considered at the hearing after notice. The fact that the plaintiff is requesting such relief should be indicated on the complaint and may be indicated on the order so as to provide notice to the defendant that the issue will be addressed at the hearing after notice. [Commentary]   [Top]

4:04 Ex Parte Orders to Surrender Guns, Licenses to Carry Firearms and FID cards. All ex parte orders must include (1) an order for "the immediate suspension and surrender of any license to carry firearms, and/or Firearms Identification [FID] Card" which the defendant may hold, and (2) an order that the defendant surrender to the police "all firearms, rifles, shotguns, machine guns and ammunition which he then controls, owns or possesses" and "any license to carry firearms or Firearms Identification Cards which the defendant may hold." These orders must be included in an ex parte order irrespective of whether the plaintiff requests them. G.L. c. 209A, § 3B.

There is no statutory authority for the court to make an independent determination that these orders are necessary or that the defendant, in fact, is in possession of a gun, firearm or ammunition or holds a license or FID card. If an ex parte order is issued, it must include these components. [Commentary]  [Top]

4:05 Reconciliation. At the ex parte stage, the court should not attempt to compel or even suggest to the plaintiff that reconciliation be attempted. The sole issue is the alleged need for protection on an immediate basis. If that need is found to exist, an appropriate order or orders should issue. If not, the complaint should be denied or the matter deferred to the hearing after notice. [Commentary]  [Top]

4:06 Information for the Plaintiff. If an ex parte order issues, the plaintiff should be told (1) the contents of the order and that it will be given to the police to be served on the defendant, (2) the date of the hearing after notice, (3) what will happen if either or both parties fail to appear at that hearing, (4) that the plaintiff is not authorized to "permit" the defendant to violate the order, and (5) what to do if the defendant violates the order. The Chief Justice of the Boston Municipal Court, Regional Administrative Justice of the Superior Court or First Justice of the District Court and the Probate and Family Court should coordinate with their staff to ensure that either court personnel or an advocate effectively communicates this information to the plaintiff. [Commentary]   [Top]

4:07 Service of Ex Parte Order On Defendant. When an order under G.L. c. 209A is issued, the clerk-magistrate or register must transmit two certified copies of the order and one copy of the complaint to "the appropriate law enforcement agency." G.L. c. 209A, § 7. The defendant information form (FA-5) should accompany these forms. The appropriate law enforcement agency should be the police department of the municipality wherein the defendant can be found. If the defendant's whereabouts or likely whereabouts are unknown, the Clerk-Magistrate or Register should transmit these documents to the police department of the city or town wherein the plaintiff resides.

Transmission of the papers should take place forthwith after the order is issued. Although delivery in-hand to police personnel is preferred, transmission can be by first-class mail. The papers may be given to the plaintiff to deliver to the police where this approach will facilitate transmission, unless the plaintiff is unable to make delivery or expresses reluctance or hesitation for any reason.

The police must serve a copy of the order and a copy of the complaint on the defendant. The order form provides for in-hand service, unless the court specifies otherwise. The police are required to make a return of service. If the defendant is incarcerated and will be incarcerated at the time scheduled for the hearing after notice, a notice should accompany the order informing the defendant of his or her right to be present at the hearing and providing a mechanism for doing so. If the defendant asks to attend the hearing, the court should issue a writ of habeas corpus to produce the defendant for the scheduled hearing. [Commentary]  [Top]

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