209A Guideline 3:06: Standard; Burden of Proof; Rules of Evidence

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

Guideline 3:06

At the ex parte hearing, the plaintiff must prove, by a preponderance of the evidence, that there is a substantial likelihood of immediate danger of abuse. “Abuse” is the occurrence of any of the following acts between family or household members: (1) attempting to cause or causing physical harm, (2) placing another in fear of imminent serious physical harm, (3) causing another to engage involuntarily in sexual relations by force, threat, or duress; or (4) coercive control G.L. c. 209A, § 1. Coercive control is defined as:

1. a pattern of behavior intended to threaten, intimidate, harass, isolate, control, coerce or compel compliance of a family or household member that causes that family or household member to reasonably fear physical harm or have a reduced sense of physical safety or autonomy, including, but not limited to:
   1. isolating the family or household member from friends, relatives or other sources of support;
   2. depriving the family or household member of basic needs;
   3. controlling, regulating or monitoring the family or household member’s activities, communications, movements, finances, economic resources or access to services, including through technological means;
   4. compelling a family or household member to abstain from or engage in a specific behavior or activity, including engaging in criminal activity;
   5. threatening to harm a child or relative of the family or household member;
   6. threatening to commit cruelty or abuse to an animal connected to the family or household member;
   7. intentionally damaging property belonging to the family or household member;
   8. threatening to publish sensitive personal information relating to the family or household member, including sexually explicit images; or
   9. using repeated court actions found by a court not to be warranted by existing law or good faith argument; or
2. a single act intended to threaten, intimidate, harass, isolate, control, coerce or compel compliance of a family or household member that causes the family or household member to reasonably fear physical harm or have a reduced sense of physical safety or autonomy of: (i) harming or attempting to harm a child or relative of the family or household member; (ii) committing or attempting to commit abuse to an animal connected to the family or household member; or (iii) publishing or attempting to publish sexually explicit images of the family or household member.

The common law rules of evidence, e.g., those regarding hearsay, authentication, and best evidence, do not apply in c. 209A hearings, subject to considerations of fundamental fairness.

Commentary

The regular civil standard of proof, preponderance of the evidence, should be applied. The plaintiff bears the burden of proof. Jones v. Gallagher, 54 Mass. App. Ct. 833, 890 (2002).

At the ex parte hearing, as at the hearing after notice in c. 209A proceedings, strict adherence to the common law rules of evidence is not expressly required by the statute. M.B. v. J.B., 86 Mass. App. Ct. 108, 110 n.5 (2014). For example, the court can properly receive testimony that would otherwise be hearsay (e.g., “the doctor said that I had a concussion”). “The rules of evidence need not be followed, provided there is fairness in what evidence is admitted and relied on.” Frizado v. Frizado, 420 Mass. 592, 597-98 (1995). See also Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 661 n.3 (2020).

The plaintiff can establish abuse by proving the defendant attempted to cause or caused the plaintiff physical harm, Corrado v. Hedrick, 65 Mass. App. Ct. 477, 478, 483 (2006) (ex parte order properly issued where defendant hit plaintiff on two occasions and threw her into a refrigerator), or that the defendant caused the plaintiff to engage involuntarily in sexual relations by force, threat, or duress. Where the defendant caused the plaintiff to engage involuntarily in sexual relations by force, the plaintiff is not required to prove reasonable fear of imminent harm to obtain relief. Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 186-87 (2020).

Abuse can also be established where the defendant placed the plaintiff in fear of imminent serious physical harm. G.L. c. 209A, § 1(b). For this definition of abuse, the focus is on whether the defendant’s conduct placed the plaintiff in “reasonable apprehension that [the defendant] might physically abuse [the plaintiff].” Commonwealth v. Gordon, 407 Mass. 340, 350 (1990). “In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances.” Ginsberg v. Blacker, 67 Mass. App. Ct. at 143, quoting Gordon, 407 Mass. at 349. A specific incident of past violence is not required for fear of imminent serious harm to be reasonable. Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665 (2020) (defendant’s erratic and unstable behavior, in the context of an escalating and emotional argument over parenting time of minor children, created a reasonable fear of imminent serious physical harm). See also Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 142 (2006) (standard met where plaintiff testified that defendant came right up into plaintiff’s face, screaming and waving his hands about very close to her face, so close to her that she could feel his “spit” on her face, defendant followed her when she tried to leave shouting obscenities); Smith v. Jones, 75 Mass. App. Ct. 540, 545 (2009) (although the defendant never made an explicit threat of violence after the relationship ended, the compulsive contacts (thousands of calls, thirty-eight voicemails, following her on vacation, stating he would “force me into a conversation,” despite plaintiff’s request that the defendant refrain), was of sufficient intensity to permit the judge to conclude the plaintiff was in reasonable fear of physical harm); Smith v. Jones, 67 Mass. App. Ct. 129, 134 (2006) (plaintiff’s testimony that boyfriend, after break-up, sent e-mail saying “he wished he could stab the plaintiff in the heart” and an ambiguous answer about whether she was afraid the defendant would “come after her” justified issuance of ex parte order).

Conditions of pretrial release in a related criminal proceeding, even if they encompass the same conditions as an abuse prevention order, are not a proper basis to deny a G.L. c. 209A abuse prevention order. Vera V. v. Seymour S., 98 Mass. App. Ct. 315, 318 (2020).

Last updated:	October 20, 2025