Guideline 3:07
The ex parte hearing itself should consist of testimony by the plaintiff under oath as to the factual grounds for the complaint and the need for the relief sought. The judge should determine whether there are any outstanding court orders involving the same parties in the same or a different court.
If the plaintiff has filed an affidavit that provides the court with substantive information supporting the complaint, the judge may rely on the affidavit to simplify the plaintiff’s testimony. If the content of the affidavit alone does not provide sufficient evidence on the issue of abuse and the need for an abuse prevention order, the court may consider additional evidence, including further testimony, police reports or other documents, or observations of the plaintiff’s visible physical injuries or physical state of being (e.g. behavior). The court should question the plaintiff as necessary in order to obtain relevant information and assess credibility. Since the plaintiff is unopposed at the ex parte hearing, it is essential that the court be satisfied that the evidence submitted is credible, and sufficient as a matter of law, to justify the issuance of an order. The court should also hear the sworn testimony of any available witnesses offered by the plaintiff. The court may also consider applicable police reports provided by a party or otherwise available to the court. Where credible facts relevant to this inquiry are elicited during the hearing, but are not included in the affidavit, the judge should add those additional facts on the affidavit in such a way to denote they were added, and credited, by the judge. This will allow future judges hearing the case to be better informed about the full context of the issuance of the order. Additionally, if the court considers other evidence, such as any visible physical injuries to the plaintiff, video or audio recordings, or text or email exchanges between the parties, the judge should memorialize these observations orally on the record. The court should decide the facts and determine whether there is a statutory basis for relief before addressing the nature of the relief sought. This need not be a formal or time-consuming process, and the judge need not necessarily announce each finding on the record.
Where there is a statutory basis for relief, the court should not refuse to consider particular types of relief available under c. 209A or send the plaintiff to a different court for relief that can be obtained in the court where the plaintiff chose to file the c. 209A complaint. A court is not precluded from issuing a temporary custody or support order that is inconsistent with an outstanding Probate and Family Court order for custody or support in appropriate cases. See Guideline 4:03A Ex Parte Orders Involving Minor Children. If the plaintiff is unable to appear in court for the ex parte hearing without severe hardship due to the plaintiff’s physical condition, then a representative may appear in court on the plaintiff’s behalf and file the requisite complaint with an affidavit setting forth the circumstances preventing the plaintiff from appearing personally. See Guideline 1:08 Plaintiff Unable to Appear in Court.
Commentary
Chapter 209A expressly authorizes the Superior Court, District Court, and Boston Municipal Court departments to issue orders regarding minor children despite the existence of an inconsistent order by the Probate and Family Court. G.L. c. 209A, § 3. This does not include setting parenting time schedules or conditions as that authority is limited to the Probate and Family Court. However, a no contact or custody order could be entered on an emergency basis and for a period of time (up to thirty days) that would allow the parties time to obtain a hearing before the Probate and Family Court. That said, a judge should be very cautious of awarding custody to a plaintiff on an ex parte basis where a Probate and Family Court awarded sole custody to the defendant. More often, the inconsistent provision will be a no contact order that would affect an existing parenting time schedule ordered by the Probate and Family Court. See Guideline 4:03A Ex Parte Orders Involving Minor Children. A no contact order that would be inconsistent with a parenting time order may be appropriate in circumstances where there has been a material change in circumstances since the issuance of the Probate and Family Court order warranting a temporary suspension of a parenting time order. If the court finds there is not a basis to issue an inconsistent order, then the plaintiff should be advised to seek modification of the parenting time order in the Probate and Family Court. Orders issued in the course of ex parte hearings should not ordinarily include terms of support or compensation for damages. Rather, claims for such relief should be considered at the hearing after notice. See Guideline 4:03 Ex Parte Support and Compensation Orders.
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| Last updated: | October 20, 2025 |
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