Guideline 4:01
If the plaintiff demonstrates, by a preponderance of the evidence, a “substantial likelihood of immediate danger of abuse,” as required by statute, the court should issue an ex parte order. See Guideline 3:00 Ex Parte Hearings: General. The court may enter any order that it deems necessary to protect a plaintiff from further abuse, including, but not limited to, any of the orders expressly authorized by G.L. c. 209A, § 3:
- ordering the defendant to refrain from abusing the plaintiff, whether the defendant is an adult or a minor;
- ordering the defendant to refrain from contacting the plaintiff, unless authorized by the court, whether the plaintiff is an adult or a minor;
- ordering the defendant to vacate forthwith and remain away from the household, multiple family dwelling, workplace, or school;
- awarding the plaintiff temporary custody of any minor child(ren);
- ordering information in the case record to be impounded;
- ordering the defendant to refrain from abusing or contacting the plaintiff’s child(ren), or any child(ren) in plaintiff’s care or custody, unless such contact is authorized by the court;
- ordering the possession, care, and control of any domesticated animal owned, possessed, leased, kept, or held by either party or any minor child(ren) residing in the household to the plaintiff or petitioner.
- ordering the defendant to refrain from abusing, threatening, taking, interfering with, transferring, encumbering, concealing, harming, or otherwise disposing of a domesticated animal;
- authorizing the defendant to pick up any personal belongings in the company of the police at a time agreed to by the plaintiff;
and, - recommending (as opposed to ordering) that the defendant attend a Department of Public Health certified intimate partner abuse education (IPAE) program.
An ex parte order must also include an order to surrender licenses to carry firearms and firearm identifications cards as well as surrender all firearms and ammunition. See Guidelines 4:04 Ex Parte Orders to Surrender Firearms, Ammunition and Firearm Licenses (FID, LTC).
The plaintiff’s residential and workplace addresses are to be entered on the order and accessible to the defendant unless the plaintiff requests that this information be withheld from the order. G.L. c. 209A, § 8. See Guideline 1:05 Public Access to c. 209A Case Files; Confidentiality of Records and Address Information. In circumstances where the court issues a stay away order and the plaintiff has requested address information be withheld from the defendant, the order should be entered as “wherever that may be,” and the appropriate box(es) should be checked so that the addresses will not appear on the order.
If a plaintiff is requesting support or compensation orders, see Guideline 4:03 Ex Parte Support and Compensation Orders.
Commentary
The authority granted to the court under c. 209A is not limited to any specific type of relief. G.L. c. 209A, § 3. Nor is the court limited to the forms of relief originally requested by the plaintiff on the complaint form. The court should fashion its relief order in response to the need for protection shown by the facts presented at the hearing. This is in contrast to c. 258E relief, which is more limited than the relief available under c. 209A. J.C. v. J.H., 92 Mass. App. Ct. 224, 230 (2017). See 258E Guideline, Commentary to Guidelines 4:00 Ex Parte Orders: General.
When issuing an ex parte order upon a finding of a substantial likelihood of an immediate danger of abuse, the order must include a firearm surrender order. G.L. c. 209A, § 3B. The judge should then consider whether the defendant poses a credible threat to the physical safety of the plaintiff and, if so, check off the box to make that additional finding. See United States v. Rahimi, 144 S. Ct. 1889, 1901 (2024); Commentary to Guideline 6:00 Initial Orders After Notice: General.
The protective purpose of ex parte orders may be interpreted broadly. For example, under appropriate circumstances, an ex parte order requiring the defendant to provide the keys to the family car to the plaintiff (e.g., by leaving them with police) might be deemed “protective,” in the sense that it eliminates one reason for the plaintiff to contact the defendant during the duration of the ex parte order. When justified by the facts, the court has authority to order a defendant to stay away from a particular school or job site, even if the defendant attends the school or works at the same location. In such cases, the plaintiff should be provided with an additional copy of the order for the school or employer, so that responsible parties in those places will be notified of the court order, as well as of the possibility of danger to the plaintiff.
Relief is, however, limited to relief that the court can constitutionally order, which is often balanced against the threat of physical harm to justify a constitutional limitation. See United States v. Rahimi, supra (upholding federal law barring an individual from possessing a firearm if they are a subject of a restraining order that includes a finding that they pose a “credible threat to the physical safety” of a protected person). With respect to an order reaching constitutionally protected speech or petitioning activity, “any order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available” See Care and Protection of Edith, 421 Mass. 703, 705 (1996). See also Town of Brookline v. Goldstein, 388 Mass. 443, 451 (1983) (finding injunction too broad where it “unduly” infringed on rights).
When a plaintiff requests that the address information be withheld from the order, it will not be transmitted to the police; rather, police would only be able to access this information directly from the court during court business hours. The judge should alert the plaintiff to this as the plaintiff may choose to notify the police department with jurisdiction over his or her residential and workplace addresses so that the police can access this information at any time. If the court provides the plaintiff’s confidential address information to law enforcement, that information must remain confidential in the hands of law enforcement.
Judges should be mindful when crafting abuse prevention orders that, with respect to the terms “stay away” and “no contact,” they are “not interchangeable.” However, a “no contact” order includes a “stay away” order. Commonwealth v. Finase, 435 Mass. 310, 314 (2001) (“Pursuant to a ‘stay away’ order, the defendant may not come within a specified distance of the protected party, usually stated in the order, but written or oral contact between the parties is not prohibited. By contrast, a ‘no contact’ order mandates that the defendant not communicate by any means with the protected party, in addition to remaining physically separated. Thus, a ‘no contact’ order is broader than a ‘stay away’ order.”).
The terms of the orders must be reasonable. They must be clear in their language, so that the parties as well as the police know what has been ordered and what conduct would violate the order. Plain language should be used (e.g., “100 yards,” not “the length of a football field”). Conditional language should not be used (e.g., contact with the child(ren) should not be conditioned on the defendant’s sobriety). In particular, an order which requires the defendant to stay a great distance, such as 1,000 yards, or even 500 or 200 yards, away from the plaintiff is difficult to enforce because it is almost impossible for such a defendant to know when he or she is in violation. Similarly, a District Court order that requires a defendant to stay more than 100 yards away from the plaintiff may make it difficult for the Probate and Family Court to craft an appropriate parenting time order without amending the District Court order. See Guideline 12:07 Custody and Parenting Time Orders in Probate and Family Court: Amending Inconsistent c. 209A Orders. Orders that require a defendant to stay from 20 to 100 yards away from the plaintiff are usually sufficient. An order requiring the defendant to stay “at least one hundred yards away” from the plaintiff and her job has been interpreted to require the defendant to stay one hundred yards away from “all of the property on which the workplace is located including the adjacent parking lot.” Commonwealth v. O’Shea, 41 Mass. App. Ct. 115, 118 (1996), overruled on other grounds, Commonwealth v. Delaney, 425 Mass. 587 (1997). A defendant may be found guilty of a violation of an order to stay away from the protected person’s workplace when he or she visits the plaintiff’s workplace, even if the plaintiff is not at work at the time of the visit. See Commonwealth v. Habenstreit, 57 Mass. App. Ct. 785, 787 (2003), rev. denied, Commonwealth v. Habenstreit, 439 Mass. 785 (2003) (since the purpose of the abuse prevention order is to provide a safe haven for the victim and to lessen the chances for contact between the victim and the defendant, to interpret the order to apply only when the victim was physically present would “encourage a defendant to keep himself or herself informed about a protected person’s schedule, a result that would be contrary to the intent of the order itself.”).
When a “stay away” order from a particular location does not specify a distance, a defendant is prohibited from (1) entering the boundary line of the property identified in the order, (2) taking actions that directly intrude on the property identified in the order, or (3) being in a position sufficiently proximate to the property identified in the order such that the defendant would be able to abuse or contact the plaintiff, in the event that the plaintiff were on the property, or entering or leaving it, even if the plaintiff is not present. Commonwealth v. Watson, 94 Mass. App. Ct. 244, 248- 49 (2018) (defendant violated stay away order where defendant was immediately outside the property boundary long enough to be observed by a person who called the police and for the police to arrive five minutes later); Commonwealth v. Telcinord, 94 Mass. App. Ct. 232, 241 (2018) (defendant violated order to stay away from victim’s residence where defendant parked on the victim’s street in clear sight of the victim’s residence). In setting out this standard, the Appeals Court noted that there certainly would be circumstances when a judge may consider it more appropriate to set a specific distance to stay away from a fixed location rather than issuing a general stay away order, but made clear that whether to do so was left to the “broad discretion” of the judge issuing the order “who is in the best position to determine what the circumstances require to create a safe haven for the protected party.” Telcinord, 94 Mass. App. Ct. at 240-41.
The judge should notify the plaintiff that a “no contact” order includes direct and indirect contact, including electronic contact through social media platforms. The court may not, however, fashion a blanket order that restricts a defendant from all internet use, as that would interfere with the defendant’s First Amendment rights. See Shak v. Shak, 484 Mass. 658, 661-663 (2020) (order that each party shall not disparage the other on social media or other internet medium was deemed an unconstitutional prior restraint on speech not justified by a compelling interest).
As noted in Guideline 4:03A Ex Parte Orders Involving Minor Children, a judge issuing an ex parte order has the authority to issue temporary custody, support, and no contact orders which may be inconsistent with existing probate court orders involving the same parties. See Guideline 1:11 Plaintiff’s Requested Order Will Contradict Existing Probate and Family Court Order; Guideline 4:03 Ex Parte Support and Compensation Orders; and, Guideline 4:03A Ex Parte Orders Involving Minor Children for a further discussion and cautions regarding such orders.
At the conclusion of the ex parte hearing, the judge, if issuing an order, should read the terms of the order to the plaintiff before signing it. This allows the judge to make sure that the order is complete and understandable, and allows a plaintiff to bring to the judge’s attention any requested relief that may have been overlooked.
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| Last updated: | October 20, 2025 |
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