Guideline 5:06
If the plaintiff fails to appear at the hearing after notice, and the defendant does appear, or, if neither party appears, the order expires by its terms at 4:00 p.m. The court should not terminate the order if the plaintiff is not present, but rather let it expire by its terms as there may be a compelling reason why the plaintiff was not present when the case was called. If the plaintiff appears late and gives the court an acceptable reason, the hearing should be continued, and the ex parte order extended. However, the new hearing date should be as soon as possible and no later than ten court business days from the original hearing date. The defendant must be provided with notice of the new hearing date, regardless of whether or not the defendant appeared.
If the plaintiff does appear at a later date seeking relief, the plaintiff must apply for a new order and must establish a substantial likelihood of immediate danger of abuse, for ex parte relief. The plaintiff need not allege any new conduct and may rely on the same conduct underlying an order after notice that previously lapsed. In determining whether the plaintiff has met their burden, the judge can take into consideration the nature and seriousness of the allegations, the continued need for the order, the reason the plaintiff did not appear at the prior hearing, and the amount of time that has passed.
Commentary
General Laws c. 209A, § 4, last paragraph, provides that, “[i]f the defendant does not appear at such subsequent hearing [i.e. the hearing after notice], the temporary order shall continue in effect without further order of the court.”
This provision contains no requirement that the plaintiff appear for the order to be extended. However, as in any civil case, the failure of the plaintiff to appear may be grounds for dismissal. The court may elect to permit the order to expire by its terms when the plaintiff does not appear.
The court is not compelled to allow the order to expire on its own terms if the plaintiff does not appear. If there is an acceptable reason for the plaintiff’s absence, or some grounds to believe that such absence is not voluntary, the case, and the order, can be extended. This is true whether or not the defendant appears. In appropriate circumstances, the case may be held while an advocate contacts the plaintiff to determine the reason for the absence.
If the plaintiff appears late, and the defendant has already appeared and has been released by the court, it is the best practice to attempt to contact the defendant and inquire whether the defendant can return for a hearing prior to extending the ex parte order and continuing the matter for another hearing date.
Finally, if the plaintiff appears at a later date after the order has lapsed, the plaintiff must apply for a new order to obtain further relief and meet the standard for the issuance of an ex parte order. The plaintiff may rely on the conduct underlying the prior order and need not allege new acts of abuse. Cf. Wilhelmina W. v. Uri U., 102 Mass. App. Ct. 634, 635 (2023) (permissible to rely on prior conduct underlying lapsed c. 258E order without requiring new acts of harassment; the court applied principles of collateral estoppel to preclude defendant from relitigating allegation of indecent assault and battery against a child that had been established at the prior hearing after notice.).
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| Last updated: | October 20, 2025 |
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