209A Guideline 5:04: Standard and Burden of Proof

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

Guideline 5:04

The standard of proof in c. 209A hearings is the civil standard of preponderance of the evidence. The plaintiff has the burden of proof at both the ex parte hearing and any subsequent hearing to further extend the order. Both sides have the right to introduce evidence.

The appropriate inquiry when considering an initial order after notice is whether the plaintiff can show, by a preponderance of the evidence, that they are suffering from abuse. The plaintiff may meet this burden by demonstrating that the defendant (1) caused physical harm, attempted to cause physical harm; (2) forced the plaintiff to engage in sexual conduct by force, threats, or coercion; (3) placed the plaintiff in reasonable fear of imminent serious physical harm, or (4) engaged in coercive control.

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.

Where credible facts relevant to this inquiry are elicited during the hearing, but 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 judges hearing the case in the future OR at subsequent hearings to be better informed about the full context of the issuance of the order.

Commentary

Proceedings under c. 209A are not criminal. The usual civil standard of preponderance of the credible evidence should be applied in c. 209A actions, Frizado v. Frizado, 420 Mass. 592, 597 (1995), and the plaintiff bears the burden of proof. Jones v. Gallagher, 54 Mass. App. Ct. 883, 890 (2002).

The third definition of abuse, “placing [the plaintiff] in fear of imminent serious physical harm “closely approximates the common-law description of assault.” 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). 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, supra at 67 Mass. App. Ct. 139, 142 (2006); 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).

The court may not issue an initial order after notice because of a subjective concern that, because an ex parte order has issued, allowing further contact between the parties would lead to violence where the plaintiff is unable to establish by a preponderance of the evidence at the hearing after notice that “abuse” within the definition of the statute occurred. Corrado v. Hedrick, 65 Mass. App. Ct. 477, 483-85 (2006). See also Banna v. Banna, 78 Mass. App. Ct. 34, 35-36 (2010) (merely asking the plaintiff if she wanted to extend the ex parte order was insufficient to issue an initial order after notice where the only evidence at the hearing after notice was the original affidavit, and, despite both parties being present, the judge did not hold an evidentiary hearing).

Note: There is a distinction between the inquiry for issuing an initial order after notice and the inquiry for issuing an extension order after notice. The inquiry for issuing an initial order after notice is whether the plaintiff has shown by a preponderance of the evidence that they are suffering from abuse as defined in G.L. c. 209A, § 1; the inquiry for issuing an extension order after notice is “whether the plaintiff has shown by a preponderance of the evidence that an extension of the order is necessary to protect [the plaintiff] from the likelihood of abuse… .” Iamele v. Asselin, 444 Mass. 734, 739 (2005). See Guideline 6:08 Further Extending an Initial Order After Notice on Its Expiration Date.

Last updated:	October 20, 2025