Orders After Notice
- Guidelines for Judicial Practice
Abuse Prevention Proceedings

Orders After Notice

6:00 Orders After Notice: General  [Commentary]

6:01 Referral for Treatment or Supportive Services  [Commentary]

6:02 Duration  [Commentary]

6:03 Service of the Order on the Defendant  [Commentary]

6:04 Modification of Orders; Vacating Orders  [Commentary]

6:05 Orders to Surrender Guns, Licenses to Carry Firearms and FID Cards  [Commentary]

6:05A Custody Orders  [Commentary]

6:06 Visitation Orders and Other Courts  [Commentary]

6:07 Mutual Restraining Orders  [Commentary]

6:08 Extending a Protective Order  [Commentary]

6:09 Permanent Orders  [Commentary]

6:00 Orders After Notice: General. Upon a finding of abuse, the court may issue orders protecting the plaintiff from abuse, including but not limited to the following:

(A) ordering the defendant to refrain from abusing the plaintiff, whether the defendant is an adult or a minor;

(B) ordering the defendant to refrain from contacting the plaintiff, unless authorized by the court, whether the plaintiff is an adult or a minor;

(C) ordering the defendant to vacate forthwith and remain away from the household, multiple family dwelling, or workplace;

(D) awarding the plaintiff temporary custody of a minor child;

(E) ordering the defendant to pay temporary support for the plaintiff or any child in the plaintiff's custody or both, when the defendant has a legal obligation to support such a person;

(F) ordering the defendant to pay the person abused monetary compensation for losses suffered as a direct result of the abuse (compensatory losses may include, but not be limited to, loss of earnings or support, costs for restoring utilities, out-of-pocket losses for injuries sustained, replacement costs for locks or personal property removed or destroyed, medical and moving expenses and reasonable attorney's fees);

(G) ordering information in the case record to be impounded; and

(H) ordering the defendant to refrain from abusing or contacting the plaintiff's child, or child in plaintiff's care or custody, unless such contact is authorized by the court. The court may issue mutual restraining orders only if the court has made specific written findings of fact. See Guideline 6:07.

Plaintiffs should receive all of the relief to which the law and the facts entitle them. Judges should not, as a matter of practice, eliminate any option (e.g., support) from the relief statutorily available. See Guideline 10:01.

However, in a court other than the Probate and Family Court, if the judge orders the defendant to stay away from or to have no-contact with the defendant's minor children for more than a 10-day period, the judge should make written findings of fact that explain for the record the reason for the order. Such findings will serve as information for any probate and family court judge who hears the case at a later time who may amend the order to eliminate inconsistent provisions pursuant to Guideline 13:00, and who will have superseding jurisdiction over custody and support and exclusive jurisdiction over visitation of minor children.

Orders issued by the Probate and Family Court involving parents should indicate whether the non-custodial parent has sought and been denied shared legal custody based upon a threat to the safety of the child or custodial parent and whether the non-custodial parent is entitled to unsupervised visitation with the child. See G.L. c. 71, § 34H, added by St. 1998, c. 285. A non-custodial parent will require an indication on the order that the parent has not thus been denied custody so that the non-custodial parent can ask the child's school for access to school records. G.L c.71, § 34H(b). If such indication is not on the order, the non-custodial parent may ask the court for an order stating that the information be made available to that parent. Id. Such an order shall, "certif(y) on its face that it is being made after a review of the records, if any, of the judgment of custody and the criminal history of the petitioner, that provision of the requested information has not been determined to pose a safety risk for the custodial parent or to any child in the custodial parent's custody and that it is in the best interest of the child that such information be provided to the petitioner...." Id.

A non-custodial parent is not eligible for the receipt of school records if the non-custodial parent's access to the child or to the custodial parent has been restricted by a temporary or permanent protective order unless the protective order, or any subsequent order which modifies the protective order, specifically allows access to the school records. G.L. c.71, § 34H(a). [Commentary]  [Top]

6:01 Referral for Treatment or Supportive Services. In addition to including in the order terms necessary to ensure the safety of the plaintiff, the judge or court personnel may recommend and refer the parties to appropriate agencies for victims of violence and Certified Batterers' Treatment Programs. Among these may be counseling for substance abuse.

For a list of Certified Batterers' Intervention Programs, see Appendix D-1.

The court may indicate that modification of the terms of its order may, with the plaintiff's agreement, be contingent on the defendant's efforts to participate in and benefit from such services. However, the court should not attempt to order the plaintiff to participate in any such services.

The court should not recommend or suggest joint counseling or mediation. See G.L. c. 209A, § 3. [Commentary]  [Top]

6:02 Duration. Each order issued after notice (except permanent orders) should be for a period of one year, unless the plaintiff requests a lesser period or the court finds that a lesser period is warranted. The parties should be informed that the plaintiff must appear before the court on the date set for termination if the plaintiff wishes the order extended. The parties should be told that the order cannot be vacated or dismissed prior to the termination date without an appearance in the same court. See Guidelines 4:06 and 6:04. If neither party appears on the termination date, the case may be dismissed. See also, Guideline 6:09. [Commentary]  [Top]

6:03 Service of the Order on the Defendant. Service of the order after notice should be made in-hand by court personnel when the defendant is before the court for the hearing after notice or for any other purpose. This service should be recorded on the order form (Form FA-2A [9/95]) at Paragraph B.3. A copy of the order must also be sent to the police.

If the defendant does not appear, the order must be transmitted to the police for service in accordance with G.L. c. 209A, § 7. The court should require such service (1) in-hand, if the terms of the ex parte order have been modified, and (2) either in-hand or by leaving a copy of the order at the defendant's last and usual place of abode, if the terms of the ex parte order have not been changed.

A defendant information form (FA 5) should always accompany the police copy and the service copies of the order. [Commentary]  [Top]

6:04 Modification of Orders; Vacating Orders. The court may modify or vacate an existing order upon motion by either party and after hearing. Such motions should be in writing and should be served on the opposing party and filed in court at least seven days in advance of the date requested for a hearing, unless the court otherwise permits. Whenever a c. 209A order is modified or extended, the judge must determine if not taking or returning the license or guns or ammunition of the defendant would present "a likelihood of abuse to the plaintiff." G.L. c. 209A, § 3C. See Guideline 6:05.

If the court modifies an order, it should transmit a copy of the modified order to the police department where the order is on file.

The police should be instructed to serve a copy of any modified order on the defendant, unless the defendant appeared in court at the hearing and was given a copy of the modified order at that time.

If an order is vacated, the court must notify the police in writing and direct the department to destroy all records of the vacated order. All changes should be entered in the Statewide Registry of Civil Restraining Orders. Vacated orders are not to be expunged from this record keeping system. [Commentary]  [Top]

6:05 Orders to Surrender Guns, Licenses to Carry Firearms and FID Cards. An ex parte order for the suspension of a license to carry a firearm and for the surrender of a gun, ammunition, license and FID card must be continued in any order after notice issued after the defendant has had a right to appear, if the court finds that the return of the license, FID card, gun or ammunition presents "a likelihood of abuse to the plaintiff." It appears that this requirement refers to a likelihood of abuse relating to the return of the license, gun or firearm.

In all other regards, the issuance of an order after notice requires proof, by a preponderance of the evidence, of a substantial likelihood of abuse. [Commentary]  [Top]

6:05A Custody Orders. In a c.209A proceeding brought in the Probate and Family Court Department, if the court finds by a preponderance of the credible evidence that a pattern or serious incident of abuse has occurred toward a parent or child, a rebuttable presumption is created that it is not in the best interests of the child to be placed in sole or shared custody with the abusive parent. If after so finding the court issues a temporary or permanent custody order, the court must within 90 days enter written findings as to the effects of the abuse on the child. These findings must demonstrate that the order is in the best interests of the child and provides for the child's safety and well-being. [Commentary]  [Top]

6:06 Visitation Orders and Other Courts. The District Court, Boston Municipal Court and Superior Court do not have jurisdiction to order visitation for a defendant in a c. 209A action. A defendant seeking visitation with minor children should be referred to the Probate and Family Court. However, the District Court, Boston Municipal Court, and Superior Court may allow the parties to discuss and to agree to visitation while they are before the court but only if the plaintiff fully and freely consents to the discussion and to the proposed visitation agreement, and the court makes a separate determination that the visitation arrangements will not expose the plaintiff to any harm or danger of harm. Such agreements on visitation, however, should not be part of the c. 209A order and the court should so inform the parties.

The defendant who intends to seek a visitation order, or other relief affecting the plaintiff, in the Probate and Family Court should be informed that, pursuant to Guideline 13:00, the Probate and Family Court may modify an abuse prevention order issued by the District Court, Boston Municipal Court or Superior Court solely to eliminate inconsistencies between said order and a decision issued by the Probate and Family Court. The defendant should be informed further that, if the probate and family court does not modify the order or the Probate and Family Court provides relief which is inconsistent with the order issued by the District Court, Boston Municipal Court or Superior Court, as it applies to the plaintiff, a violation of any term of the protective order, as it applies to the plaintiff, will expose the defendant to immediate arrest.

Both parties should be told that the Probate and Family Court has superseding jurisdiction regarding custody, support and contact with minor children and exclusive jurisdiction regarding visitation. See Guidelines 12:00, 12:01, 12:02, 12:03, 12:06 and 12:07 regarding visitation in particular and Guidelines 12:00 - 12:14 generally regarding related proceedings in Probate and Family Court. [Commentary]  [Top]

6:07 Mutual Restraining Orders. "A court may issue a mutual restraining order or mutual no-contact order pursuant to any abuse prevention action only if the court has made specific written findings of fact." G.L. c. 209A, § 3. The findings of fact should provide the basis for the court's conclusion that each party has proved, by a preponderance of the evidence, that the other party has abused him or her and that the resulting protective orders are warranted. "The court shall then provide a detailed order, sufficiently specific to apprise any law officer as to which party has violated the order, if the parties are in or appear to be in violation of the order." Id. Mutual restraining orders should never be issued at an ex parte hearing. Each mutual order should refer to the other order by court department, division and case number.

Consecutive orders, where the same parties reverse roles in different courts, should not be considered "mutual orders." In such cases, (1) the court in the second action should question the plaintiff, if it suspects a retaliatory motive, and (2) where no substantial likelihood of immediate danger exists, the court may refer the plaintiff in the second action back to the court that issued the first order to seek a modification of that first order.

If the second order is sought in the same court that issued the first, the matter should be deemed a motion to modify the first order. See Guideline 6:04, regarding modification of an order. If, at the hearing, relief to both parties is warranted, mutual orders may be issued. [Commentary]  [Top]

6:08 Further Extending a Protective Order. If, after a hearing after notice, an order was issued for one year or some lesser period of time, that order may be extended further or made permanent at its expiration date regardless of whether there has been any new incident of abuse. The defendant must be served with a copy of the order that has been extended. Any such order should be entered in the Statewide Registry of Civil Restraining Orders. [Commentary]  [Top]

6:09 Permanent Orders. A judge may issue a permanent restraining order if the plaintiff appears at the court at the date and time that a previous order after notice is scheduled to expire. [Commentary]  [Top]

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