Hearings After Notice
Guidelines for Judicial Practice
Abuse Prevention Proceedings

Hearings After Notice

5:00 Scheduling the Hearing After Notice  [Commentary]

5:01 Conduct of Hearings After Notice: General  [Commentary]

5:02 Role of Advocates at Hearings After Notice  [Commentary]

5:03 Rules of Evidence  [Commentary]

5:04 Standard of Proof  [Commentary]

5:05 Failure of the Defendant to Appear  [Commentary]

5:06 Failure of the Plaintiff to Appear  [Commentary]

5:07 Court Action on Defendant's Warrant or Probation Status  [Commentary]

5:08 Request by the Plaintiff to Dismiss the Case  [Commentary]

5:00 Scheduling the Hearing After Notice. A hearing after notice in a c. 209A case should be scheduled as soon as possible after an ex parte order is issued, but in no event later than ten court business days after the issuance of such an order. See Guideline 4:00.

However, hearings after notice may be held at any time when both parties are present, including at the initial appearance or during the course of an arraignment on related criminal charges. See Guideline 8:07.

When scheduling the hearing after notice, the court should consider the plaintiff's ability to appear and the defendant's right to be heard within a minimum time following the issuance of an ex parte order. [Commentary]  [Top]

5:01 Conduct of Hearings After Notice: General. The hearing after notice in a c. 209A action is an adversarial proceeding in which both parties must be allowed to present evidence and the plaintiff bears the burden of proof.

The court should ensure an orderly proceeding and should be cognizant of security issues. The court should address placement of participants in the courtroom with this in mind. All parties and witnesses should testify under oath.

Both parties have a general right to cross-examine witnesses but the judge should not permit such cross-examination to be used for harassment or discovery purposes. However, each side must be given a meaningful opportunity to challenge the other's evidence. The court should also be alert for possible fifth amendment issues, particularly if there is a related criminal proceeding. That is, neither the defendant nor the plaintiff should be compelled to provide incriminating information.

Both parties should be told that if a no-contact or a vacate order is issued, the defendant must comply with those orders unless and until those specific orders are vacated in writing by the court. The plaintiff has no authority to "waive" the orders without going to court to ask to have them vacated, and the defendant is subject to mandatory warrantless arrest for violating these orders, notwithstanding the plaintiff's "consent." Sample written notices are provided at Appendix I.

Before the hearing begins, the judge should ask both parties whether there are any outstanding orders from any court involving the same parties. The response will govern the relief available. See Guidelines 2:07, 3:07, 4:01, 6:00 and 13:00. [Commentary]  [Top]

5:02 Role of Advocates at a Hearing After Notice. At a hearing after notice, an advocate should be permitted to accompany a party in the courtroom, stand with the party throughout the proceedings, and aid and support the party to the extent that the party wishes it and the court deems it helpful. The court should allow an advocate to speak with the party in order to help the party to provide the court with relevant additional information. [Commentary]  [Top]

5:03 Rules of Evidence. The common law rules of evidence, e.g., those regarding hearsay, authentication, and best evidence, should be applied with flexibility, subject to considerations of fundamental fairness. [Commentary]  [Top]

5:04 Standard of Proof. The standard of proof in c. 209A hearings is the civil standard of preponderance of the evidence. The plaintiff has the burden of proof, but both sides have the right to introduce evidence. [Commentary]  [Top]

5:05 Failure of the Defendant to Appear. If the defendant fails to appear at the hearing after notice, and the plaintiff does appear, and if there is evidence of notice to the defendant and no reason for excusing the defendant's absence, the court should consider the defendant to have forfeited his or her opportunity to be heard. In such cases the order may be extended as the court deems appropriate, and the terms may be modified.

If the terms of the order are modified, the defendant must be served with a copy of the modified order in the same manner as service of an ex parte order. SeeGuideline 4:07.

If there is no return of service to the court, and no other acceptable evidence that the defendant has received notice of the hearing, or if the court is given an acceptable reason for the defendant's absence, the hearing should be continued for no more than ten court business days. The order may be extended during that time. New notice of the rescheduled hearing should be provided to the defendant. [Commentary]  [Top]

5:06 Failure of the Plaintiff to Appear. If the plaintiff fails to appear at the hearing after notice, and the defendant does appear, or if neither party appears, the case may be dismissed, unless the court is given an acceptable reason for the plaintiff's absence. If the court is given an acceptable reason, the hearing should be continued and the ex parte order extended. However, the new hearing date should be as soon as possible and no later than ten court business days from the original hearing date. [Commentary]  [Top]

5:07 Court Action on Defendant's Warrant Status. If, at the time of a hearing after notice, the court becomes aware, by means of the required check of the Statewide Registry of Civil Restraining Orders or the Warrant Management System or otherwise, that a warrant for the defendant's arrest is outstanding, and the defendant is present, the court should instruct a court officer to arrest the defendant under G.L. c. 221, § 70A. The court should then either bail the defendant under G.L. c. 276, § 29-30, or order the county jail to transport the defendant to the court that issued the warrant, under G.L. c. 37, § 24(a). Courts should not allow a defendant against whom a criminal default warrant is outstanding to leave the courthouse without addressing the warrant. If the defendant is not present, the court should follow the procedure described in Guideline 3:05 for the ex parte hearing. [Commentary]  [Top]

5:08 Request by the Plaintiff to Dismiss the Case. If the plaintiff appears on the date scheduled for the hearing after notice, or at any other time, and requests that the case be dismissed, the judge should ask certain questions before doing so. First, the court should ask about the reasons for the dismissal request. Such an inquiry is appropriate so that the reasons for the request appear on the record, and so that the plaintiff may be referred for supportive services. Second, the court should inquire whether any different or lesser order or component of the existing order (e.g., a refrain from abuse order) should be left in effect to accomplish the plaintiff's purpose. Third, the court should inquire whether vacating the order will place at risk any children living in the home.

Nevertheless, a plaintiff who wishes to terminate the order should be permitted to do so, regardless of the reason given or the presence of children. (But seeGuideline 10:03, Care and Protection Proceedings.) it is also important for the judge to state that vacating the order will not prevent a plaintiff suffering from abuse from seeking a new order or other protection from the court at any time in the future. [Commentary]  [Top]

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