Guideline 6:03
The order after notice should be provided in-hand to the defendant by court personnel when the defendant is before the court for the hearing after notice or for any other purpose. This should be recorded on the order. A copy of the order must also be sent to the appropriate police department.
If the defendant does not appear, the initial order after notice must be transmitted to the police for service in accordance with G.L. c. 209A, § 7, even if the defendant was served with the ex parte order. The court should require that such service be made in the same manner as service of the ex parte order or in whatever manner is most likely to result in actual notice to the defendant.
Where in-hand service cannot be made because of lack of knowledge of the defendant’s whereabouts, evidence that the defendant is avoiding service, or for any other reason, a judge, upon finding that the appropriate law enforcement agency has made a conscientious and reasonable effort to effect service but has nevertheless failed, can authorize service by alternative means including serving at a last and usual address, leaving at the defendant’s work address or at an address the defendant is known to frequent (e.g., parents’ home), serving by e-mail, etc. See Guideline 4:07B: Alternative Service Must be Authorized by a Judge. In such circumstances, the judge must make the finding on the order and indicate how the alternative service should be made. Notice by publication should not be used because it is ineffective and may, in some circumstances, violate the plaintiff’s privacy interests. See G.L. c. 41, § 97D. In any event, service should be made in whatever manner is most likely to result in actual notice to the defendant. See Guideline 8:01, Enforcing Violations of Abuse Prevention Orders. The police are required to make a return of service to the court. A Defendant Information Form should always accompany the police copy and the service copies of the order.
Commentary
General Laws c. 209A, § 7, second par., sets forth the required procedure for service of all orders issued under that law, including transmitting the documents to the appropriate police department, service by the police, and the filing of a return of service. However, if the defendant is before the court, direct in-hand service is appropriate and obviates the need for police service. Whenever it is possible, defendants should be instructed to remain in the courtroom until service is made. The plaintiff should receive a copy of the completed order before the defendant is served so that the plaintiff has the opportunity to leave the courthouse and avoid possible contact with the defendant. A copy of the order should nonetheless be sent to the appropriate police department for notification and enforcement purposes.
The judge and court personnel should be aware that a defendant subject to a recently issued abuse prevention order from that court may not yet have been served with a copy of that order. If a defendant is before the court at any other time, whether for related or unrelated criminal charges, or for subsequent c. 209A hearings, or for any other reason, he or she should be served with a copy of the order and such service should be reflected on the order.
If the defendant is not before the court when an order after notice is issued, in-hand service is required. See Commonwealth v. Griffen, 444 Mass. 1004 (2005) (service is to be made in-hand unless alternative service has been authorized by the judge). Failure to properly serve the defendant does not, however, invalidate the order. Commonwealth v. Delaney, 425 Mass. 587 (1997), cert denied, Delaney v. Commonwealth, 522 U.S. 1958 (1998). See also Commonwealth v. Henderson, 434 Mass. 155 (2001). As long as the defendant has notice of the terms of the order, the order is enforceable. See Guideline 8:01 Enforcing Violations of Abuse Prevention Orders.
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| Last updated: | October 20, 2025 |
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