Guideline 2:04
Plaintiffs should file a signed, sworn statement (“affidavit”) describing the factual basis of the complaint. See Guideline 2:03 Completing the Complaint; Obtaining Required Information, regarding affidavits in ex parte cases in the Probate and Family Court Department. If the plaintiff is limited or non-English speaking, see Guideline 1:07 Limited and Non-English Speaking Parties in c. 209A Actions.
Plaintiffs should be encouraged to provide as much information as possible about the allegations of abuse, including specific information about the most recent incident of abuse and the most serious incident, even if the most serious incident occurred some time ago. The plaintiff should be informed that the defendant will have access to the affidavit. If the plaintiff seeks an order that the defendant have no contact with or must stay away from the defendant’s minor child(ren), the grounds for that request should be set forth on Page 2 of the Complaint. The affidavit should also set forth the basis for such an order concerning the child(ren).
Commentary
The advantage of obtaining a signed statement, or affidavit, is that factual allegations are then preserved in the case file. This can also obviate the need for the judge to question the plaintiff extensively when the matter comes before the court at the ex parte hearing, saving time and potential embarrassment due to the intimate nature of the allegations. However, the plaintiff’s failure or inability to complete such a statement cannot be grounds for denial of the right to file a complaint and obtain a hearing. See Guideline 2:05 Processing the Complaint.
The plaintiff must establish a basis for requesting that the court order no contact with the defendant’s minor child(ren). “If there is to be a G.L. c. 209A order that a defendant stay away from and have no contact with [their] minor children, there must be independent support for the order.” Smith v. Joyce, 421 Mass. 520, 523 (1995). Appropriate reasons for issuing such an order may include, but are not limited to, a finding that the child(ren) has/have been abused; that the child(ren) witnessed the defendant’s abuse of the plaintiff and are, therefore, afraid of the defendant and would be harmed by seeing the defendant; or that contact with the child(ren) in the plaintiff’s custody cannot be arranged without endangering the plaintiff. See Schechter v. Schechter, 88 Mass. App. Ct. 239, 251-52 (2015) (proper for court to issue order prohibiting contact with minor child where child witnessed father’s abusive behavior toward the mother). If the plaintiff’s child(ren), or the child(ren) in the plaintiff’s custody, are not the defendant’s child(ren), there need be no such showing. With respect to the effect of orders precluding contact between the defendant and the defendant’s child(ren), see Guideline 1:11 Plaintiff’s Requested Order Will Contradict Existing Probate and Family Court Order; Guideline 2:07 Referral to and from Other Courts and Avoiding Inconsistent Orders; and, Guideline 12:00 Probate and Family Court: Parenting Time and c. 209A Proceedings.
When a plaintiff cannot complete an affidavit, due to limited or no proficiency in English, inability to read or write, or other language difficulties, an advocate or interpreter may assist the plaintiff by transcribing the plaintiff’s statement in the affidavit. The plaintiff is to complete the affidavit in the plaintiff’s native language, and the interpreter is to translate the statement in writing for the court. See Guideline 1:07 Limited and Non-English Speaking Parties in c. 209A Actions.
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| Last updated: | October 20, 2025 |
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