209A Guideline 4:03A: Ex Parte Orders Involving Minor Children

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

Guideline 4:03A

At the hearing, the judge should determine if there are any existing Probate and Family Court support or custody orders, including parenting time orders, presently in effect involving the parties, and, if so, what those orders entail. A judge hearing an ex parte order, upon a finding of a substantial likelihood of immediate danger of abuse, may grant any permitted relief as warranted by the facts, including orders that are inconsistent with an existing Probate and Family Court order regarding custody, parenting time, or support, but see Commentary to Guideline 4:03 Ex Parte Support and Compensation Orders.

Although courts other than the Probate and Family Court do not have the authority to establish parenting time schedules or set conditions for parenting time, courts other than the Probate and Family Court do have the authority to issue custody and no contact orders on a temporary basis, even if those orders would suspend an existing parenting-time order. The plaintiff must establish a basis for requesting that the court order no contact with the defendant’s minor child(ren). 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. If the minor child has suffered direct abuse, the judge should consider issuing a separate order in the child’s name as an “on behalf of order.” This may eliminate any ambiguity in the enforcement of such orders after the child reaches the age of majority.

If a non-Probate and Family Court judge issues an ex parte order that is inconsistent with an existing Probate and Family Court support or custody order (including parenting time orders), the statute requires that the court immediately transmit a copy of the order to the Probate and Family Court which issued the existing order as the Probate and Family Court will ultimately have to address the issue. Once the Probate and Family Court has acted, the Probate and Family Court shall thereafter retain final jurisdiction over any custody, contact, or support order it issues. See also Guideline 6:06 Parenting Time Orders Exclusive to Probate and Family Court. However, a court other than the Probate and Family Court still may order emergency relief under c. 209A. G.L. c. 209A, §§ 3, 4.

If a court issues an order that suspends contact between the defendant and the defendant’s minor child(ren) or increases burdens on the defendant, notice must be provided to the defendant and a two-party hearing scheduled within ten days (as opposed to an order that lessens burdens on the defendant which would not require a two-party hearing). If, at a hearing after notice, the court continues an order that is inconsistent with an existing Probate and Family Court order, the procedure for issuing an inconsistent order must be followed. See Guideline 1:11 Plaintiff’s Requested Order Will Contradict Existing Probate and Family Court Order.

The statute specifically provides that the fact that a Probate and Family Court order relating to any minor child(ren) will ultimately supersede an order of another court does not mean that Superior Court, District Court, or Boston Municipal Court judges “are prohibited or discouraged from ordering all other necessary relief or issuing the custody and support provisions of orders pursuant to c. 209A for the full duration permitted under subsection (c).” G.L. c. 209A, § 3.

Note: A plaintiff cannot be awarded custody pursuant to c. 209A when a third party has custody of the minor child(ren).

Commentary

The plaintiff must establish a basis for requesting that the court order no contact with the defendant’s minor child(ren). 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. “If there is to be a G.L. c. 209A order that a defendant stay away from and have no contact with his or her minor child(ren), 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, the following: a finding that the child(ren) has/have been abused; that they have 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 no parenting time can be arranged with the child(ren) in the plaintiff’s custody without endangering the plaintiff. See Schechter v. Schechter, 88 Mass. App. Ct. 239, 251-52 (2015).

The following factors can be considered when determining whether to issue a custody or no contact order.

General Factors to Consider:

1. About the nature of the abuse
   • What is the nature of the abuse?
   • Was this an isolated incident?
   • Is there a history of controlling or abusive behavior, including emotional abuse, threats, and/or intimidation as well as physical abuse?
   • Does the history suggest a pattern of controlling or abusive behavior towards prior partner(s)?
   • What is the frequency? What is the most recent episode?
   • What is the most severe incident?
2. About the child(ren)
   • Has/have the child(ren) witnessed, heard, seen, or been exposed to the violence or its aftermath?
   • Has/have the child(ren) been used to exert control over the plaintiff?
   • Has/have the child(ren) been hurt or neglected?
   • Is the Department of Children and Families (DCF) involved with the family? If so, for what reason? Was a report of abuse and/or neglect supported? Abuse and/or neglect by which parent?
3. About the parent who has been abusive
   • Is that parent claiming to be the victim?
   • Is that parent misusing systems like DCF, the police, or the courts to control or have contact with the parent who has been abused?
   • Does that parent have a history of abuse prevention orders, criminal charges or convictions that suggest violent behavior?
   • Is there evidence that that parent has not been compliant with court orders?
4. About the parent who has been abused
   • Is that parent currently safe?
   • Has that parent sustained injuries?
   • Can that parent separate their needs from those of the child(ren)?
   • Is there a history of prior victimization, mental illness, substance use disorder?
   • What is that parent’s expressed level of fear?

For a more comprehensive discussion of these factors, see Guideline 12:01 Parenting Time in Probate and Family Court: Safety Assessment Pertaining to the Plaintiff in Abuse Prevention Proceedings. Please note, however, that only the Probate and Family Court has the authority to establish a parenting time schedule, and these factors should only be considered by non-Probate and Family Court departments in the context of issuing custody and no-contact orders.

If there is evidence of direct abuse by the defendant against the minor child, it may be a better practice to issue a separate order “on behalf of” the minor child, as opposed to listing the child on the parent’s order. An “on behalf of” order will eliminate the need for the minor child to appear in court upon reaching majority to obtain a new order. There is no case law addressing the enforcement of a violation of an abuse protection order with respect to a child named in a plaintiff’s order after the child has reached the age of majority. Without further guidance, the enforceability of protection of a child named in a plaintiff’s order beyond the age of majority (e.g., permanent order) should be presumed to be enforceable absent an order by the court terminating it; an “on behalf of” order may be less ambiguous. Cf. Commonwealth v. Tuvell, 105 Mass. App. Ct. 1108 (2024) (unpublished), review denied, 495 Mass. 1107 (2025) (cannot violate a court order and then challenge its validity as a defense in a subsequent criminal prosecution).

Chapter 209A expressly authorize the Superior Court, District Court, and Boston Municipal Court departments of the Trial Court to issue orders regarding any minor child(ren) despite the existence of an inconsistent order by the Probate and Family Court. G.L. c. 209A, § 3. This amendment still precludes courts other than the Probate and Family Court from setting parenting time schedules or conditions, but recognized that 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. However, 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. If the court finds that 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.

If an inconsistent order issues, follow the procedure set forth in Guideline 1:11 Plaintiff’s Requested Order Will Contradict Existing Probate and Family Court Order.

Note: Be aware that the information learned during the ex parte hearing could trigger the requirement to make a report to the Department of Children and Families (DCF) pursuant to G.L. c. 119, § 51A. In such instances, the court should direct court personnel to file a report with the DCF.

Last updated:	October 20, 2025