Guideline 3:05
General Laws c. 209A, § 7 requires that the judge “shall review the defendant’s criminal history and history of civil restraining orders.” The clerk’s office should also check the Warrant Management System (WMS).
If an ex parte order will be issued and the judge receives information from either source that an outstanding warrant exists against the defendant, the judge “shall [(1)] order that the appropriate law enforcement officials be notified,” (2) order that “any information regarding the defendant’s most recent whereabouts . . . be forwarded to such officials,” (3) “make a finding based on all of the circumstances, as to whether an imminent threat of bodily injury exists to the petitioner,” and, (4) if such a threat is found to exist, “notify the appropriate law enforcement officials of such finding and such officials shall take all necessary actions to execute any such outstanding warrant as soon as practicable.” G.L. c. 209A, § 7.
In all cases, judges should be mindful of safety concerns that may arise when attempting to serve the order on the defendant. For example, a defendant who may have access to firearms or an alcohol or substance use disorder or mental health concerns, or a defendant who may be alone with young children would be the type of information the police should be aware of in order to safely serve the order. If the judge becomes aware of such safety concerns, that information must be communicated to the police. This information could be noted on the Defendant Information Form that is sent with the order to the police. If a judge determines, based on the information available to the judge, there is an imminent threat of bodily injury to the plaintiff, whether based on the nature of outstanding warrants alone, the nature of any outstanding warrants combined with the assertions of the party seeking the c. 209A order, or solely upon the assertions of the party, the judge should check the appropriate box on the order and direct the clerk’s office, the victim-witness advocate, or the district attorney’s office to notify the appropriate law enforcement officials of the situation and the circumstances that give rise to the imminent threat of bodily injury. Those officials would include, at a minimum, the police department that is responsible for serving the c. 209A order so that they can take necessary precautions when serving the order.
Probation departments are notified each day about the court activity of their probationers during the previous day. Therefore, each supervising probation officer should learn on the next court day about any c. 209A abuse prevention orders issued against his or her probationer and subsequently entered in the Court Activity Record Information (CARI) system. In situations of particular danger or urgency, however, it may be appropriate for the judge to order that the probation officer supervising a c. 209A defendant be notified immediately.
Commentary
The defendant’s criminal history and previous abuse prevention order history must be reviewed at the ex parte hearing for a variety of reasons. In addition to alerting the judge of outstanding warrants or other abuse prevention orders, this information is helpful in identifying situations in which the plaintiff or police may face a particularly heightened degree of danger.
The requirement that the judge notify the “appropriate law enforcement officials” about an outstanding warrant is triggered by the existence of any outstanding warrant. The “appropriate law enforcement officials” are, at a minimum, the police department to which the c. 209A order is sent for service. On the appropriate part of the Order, the judge is to indicate whether or not there are outstanding warrants at the time the Order issued, so that law enforcement officials can take all necessary actions to execute any such outstanding warrants as soon as practicable, as well as to safely serve the order. Advocates can be particularly helpful in coordinating a plan for service with the police and the plaintiff, especially in situations where the defendant is currently at the residence to which the plaintiff will be returning.
Notice of the order to the Probation Department serves two purposes. First, the actions that constitute the basis for the c. 209A order may be sufficient to constitute a violation of the terms of the defendant’s probation. The supervising probation officer may wish to bring the allegations to the attention of the sentencing court, either by sending the defendant a notice of probation violation, or, in situations of particular danger, requesting an arrest warrant.
Second, the supervising probation department can sometimes assist the court in notifying a defendant of the issuance of the ex parte order by providing information regarding the most recent address or by notifying the court that the defendant will be in a particular court on a particular date. This is particularly useful in situations where the plaintiff does not know where the defendant can be served or when attempts at service have been unsuccessful.
It is important that an up-to-date copy of the defendant’s criminal record be obtained for each hearing; an old copy of the record may give inaccurate or incomplete information. In the District Court, Boston Municipal Court, and Superior Court departments, the defendant’s criminal record should be returned to the defendant’s probation file. In the Probate and Family Court, in accordance with Probate and Family Court Standing Order 1-11, all Court Activity Record Information (CARI) and Warrant Management System (WMS) information must be shredded unless a party or the judge requests that it be kept in the probation file. The printed copy of the defendant’s criminal record should not be placed in the case file.
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| Last updated: | October 20, 2025 |
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