209A Guideline 1:02: Due Process Considerations

Part of the Guidelines of Judicial Practice: Abuse Prevention Proceedings.

Guideline 1:02

The adjudication of cases by a neutral court is a fundamental element of due process. In c. 209A cases, as in all other court proceedings, the court is responsible for protecting the rights of the parties and adjudicating each complaint on a case-by-case basis.

Particular care is warranted regarding the following:

1. An order should not issue unless the court is satisfied that the parties meet the definition of “family or household members” as defined by G.L. c. 209A, § 1, and that the facts alleged constitute abuse as defined by G.L. c. 209A, § 1, or, in the context of an emergency or ex parte order, a substantial likelihood of immediate danger of abuse. See Guideline 1:00A Subject Matter Jurisdiction; Eligibility for Relief.
2. The court should require evidence of notice to the defendant before issuing an order for longer than ten court business days. See Guideline 5:05 Failure of the Defendant to Appear.
3. When possible (and when effective service can be clearly made), the court should consider limiting the duration of an ex parte order to fewer than the maximum ten days in order to minimize the deprivation of the defendant’s rights before the defendant is given notice and an opportunity to be heard. See Guideline 5:00 Scheduling Hearings After Notice.
4. The plaintiff must prove, by a preponderance of the credible evidence, that the requested relief is legally warranted. See Guideline 3:06 Standard; Burden of Proof; Rules of Evidence; Guideline 5:03 Rules of Evidence; and, Guideline 5:04 Standard and Burden of Proof.
5. In appropriate circumstances, the court may decline to issue an ex parte order but rather choose to delay action on the complaint until both parties have been given notice and an opportunity to be heard. However, because the plaintiff will not have the protection of a c. 209A order in the interim between the filing of the complaint and the two-party hearing, such practice should only be used in situations in which it is clear that the delay will not present an elevated danger to the plaintiff.
6. Each party must be given a meaningful opportunity to challenge the other party’s evidence in any contested hearing, although the court should not permit harassment or intimidation. See Guideline 5:01 Conduct of Hearings After Notice When Both Parties Appear: General.
7. In determining whether to exercise jurisdiction in an interstate custody dispute under the emergency exception to the Uniform Massachusetts Child Custody Jurisdiction Act (G.L. c. 209B, § 2(a)(3)), a judge must, at minimum, hear argument from and review the affidavits from both parents. Orchard v. Orchard, 43 Mass. App. Ct. 775, 781 n.11 (1997), citing Umina v. Malbica, 27 Mass. App. Ct. 351, 360 n.11 (1989).

Commentary

The issue of domestic violence has become the focus of legitimate and increasing public concern. However, that concern must not be permitted to affect or diminish the court’s responsibility to remain neutral, to protect the rights of the parties in each case, and to address each case individually on its own merits. “Whether a defendant’s constitutional rights have been violated [in a c. 209A proceeding] will depend on the fairness of a particular proceeding.” Frizado v. Frizado, 420 Mass. 592, 598 (1995). See also, C.O. v. M.M., 442 Mass. 648, 656-659 (2004) (court found that defendant’s right to due process had been denied where defendant was not given the opportunity to present or cross-examine witnesses during a hearing on the question of continuing a temporary order). Proceeding with a hearing on a c. 209A complaint without prior notice to the defendant and a right to be heard constitutes an exception to fundamental due process. This emergency exception, i.e., the right to proceed ex parte, is justified only when there is “a substantial likelihood of an immediate danger of abuse.” G.L. c. 209A, § 4.

Massachusetts’ courts may issue an abuse prevention order under c. 209A against an out-of- state defendant even in cases where the court does not have personal jurisdiction over the defendant. Caplan v. Donovan, 450 Mass. 463, 463-64, (2008), cert. denied, Donovan v. Caplan, 553 U.S. 1018 (2008). However, such orders “cannot impose any personal obligations on a defendant, and [are] limited to prohibiting actions of the defendant.” Id. at 469-471. See Guideline 3:03A Personal Jurisdiction over a Non-Resident Defendant and Guideline 4:01A Ex Parte Orders and a Non-Resident Defendant.

Last updated:	October 20, 2025