Guideline 6:04
Either party can move to modify or terminate an existing order. Such motions must be in writing noting the requested actions and stating the reasons therefore. The clerk’s office should request identification from all individuals seeking to modify or terminate an order and bring the motion before the court.
Where a plaintiff seeks to terminate an order, either in part or in its entirety, the court may hear that motion without advance notice to the defendant, since allowing the motion would reduce or eliminate the restrictions on the defendant. See Guideline 5:08 Request by the Plaintiff to Terminate Abuse Prevention Order. However, if the plaintiff seeks to modify an order to add additional restrictions on the defendant, the defendant must have an opportunity to be heard. Of course, if the court finds a substantial likelihood of an immediate danger of abuse, the modification can be ordered on an ex parte basis, with notice provided to the defendant and a hearing within ten days on the requested modification. Notice to the defendant must be made by serving the defendant in-hand by the police. See Guideline 4:07 Transmission of Ex Parte Orders to the Police for Service on the Defendant. The judge should make clear on the ex parte order that the two-party hearing is just on the motion for modification. At the hearing after notice, the plaintiff has the burden of establishing, by a preponderance of the evidence, that the modification is necessary to protect the plaintiff from abuse. Cordelia C. v. Steven S., 95 Mass. App. Ct. 635, 639 (2019). If the motion for modification is denied, the remaining terms of the order still remain in full force and effect.
A defendant who seeks to modify or terminate an order must establish, at a hearing after notice, by clear and convincing evidence, that there has been a significant change in circumstances since the entry of the order and that the provision(s) at issue is no longer necessary to protect the plaintiff from abuse. Id., citing McDonald v. Caruso, 467 Mass. 382, 382-383 (2014). The significant change in circumstances must involve more than the mere passage of time; similarly, compliance by the defendant with the order is also not sufficient alone to constitute a significant change in circumstances. The basis on which the order was initially issued is not subject to review or attack and can only be challenged through an appeal. See Guideline 7:00 Appeal. However, if there is a significant change in circumstances not foreseen when the last order was issued, the passage of time and compliance with the order may be considered in determining whether, in the totality of the circumstances, there is no longer a need for the order.
A judge can deny a defendant’s request for termination or modification without holding a hearing after notice. Before requiring a plaintiff to appear on a defendant’s motion for modification, the judge should consider whether the defendant has made a preliminary showing warranting a hearing after notice, and should be alert to defendants using motions to modify or terminate to further harass or abuse the plaintiff. Opportunities for increased contact with the defendant may increase the risk of harm to the plaintiff. If, however, the court finds that there is a basis to hold a hearing after notice, the motion must be served on the plaintiff and a hearing after notice scheduled for no sooner than seven days after the motion was filed in court, unless the court permits otherwise. The clerk’s office should notify the plaintiff of the hearing; notice should not be made by the defendant.1
While a judge should certainly give serious consideration to the plaintiff’s position regarding a defendant’s motion to terminate or modify an existing order, the judge should not give meaning to a plaintiff’s silence or failure to appear, because a judge cannot know whether silence reflects acquiescence in the termination/modification request or continued fear of the defendant. The plaintiff bears no burden at a termination hearing and is entitled to rest on the finality of the order. Regardless of whether the motion is allowed or denied, the judge must make findings of fact on the record and indicate who appeared at the termination/modification hearing. MacDonald v. Caruso, 467 Mass. 382, 387-94 (2014).
Whenever a c. 209A order is modified or extended, the judge must determine if returning the license or firearms or ammunition of the defendant would present “a likelihood of abuse to the plaintiff.” G.L. c. 209A, § 3C. If the judge makes such a determination, the court shall continue the firearm surrender order by checking the appropriate box on the Order. If a firearm surrender order issues, the judge should then consider whether the defendant poses a credible threat to the physical safety of the plaintiff. See Guideline 6:00 Orders After Notice and Guideline 6:05 Orders to Surrender Firearms, Ammunition, and Firearms Licenses (FID; LTC). Unless considering modification of the firearm surrender provision, it is unlikely that the court would find a surrender order was no longer necessary to protect the plaintiff.
If the court modifies or terminates an order, it should transmit a copy of the modified or terminated order to the police department where the order is on file. If an order is terminated, the police are to destroy all records of the terminated order. G.L. c. 209A, § 7.2 When the order expires because the plaintiff fails to appear at an extension hearing, the court need not issue notice to the police department. If the order is modified, the police must serve a copy of any modified order on the defendant, unless the defendant appeared in court at the hearing and was given a copy of the modified order at that time. If the plaintiff was not present at the hearing, but had received notice of it and the court grants the modification, the court should provide notice to the plaintiff of the outcome of the hearing. All changes should be entered promptly in the Statewide Registry of Civil Restraining Orders.
Records of orders, even orders that are terminated, are not to be expunged from this record keeping system. See Xarax X. v. Yale Y., 102 Mass. App. Ct. 699, 702-704 (2023). The expungement statutes, G.L. c. 276, §§ 100E-100U do not apply to abuse prevention orders. Expungement is only available in the rare case when the defendant can show by clear and convincing evidence that the order was obtained through the commission of fraud on the court. Comm'r of Probation v. Adams, 65 Mass. App. Ct. 725, 728-737 (2006). See also Commonwealth v. Boe, 456 Mass. 337, 347, n. 14 (2010). A “fraud on the court” occurs where “a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Smith v. Jones, 67 Mass. App. Ct. 129, 137–38 (2006). That a plaintiff presents a claim that fails does not mean that the plaintiff has perpetrated a fraud on the court. Id. at 138. If this standard is met and the court orders expungement, the court records should be destroyed following the same process that is in place for destroying manual and electronic records under the expungement statutes, sealing the case until final expungement on the sixtieth day.
Commentary
Both parties have the right to ask the court to modify an existing order, by either increasing or decreasing the severity of the terms, or by terminating the order. A pending appeal of an abuse prevention order does not deprive the Trial Court of its ability to modify (or terminate) the order. Quinn v. Gjoni, 89 Mass. App. Ct. 408, 411 (2016). The court should, however, be alert to repeated requests by a defendant to modify or terminate an order as unwarranted requests may themselves be a form of abuse and create a burden on the court as well as the opposing party. See Champagne v. Champagne, 429 Mass. 324, 327 n.2 (1999) (opportunities for increased contact with the party who utilizes abuse may increase the risk of harm to the party experiencing abuse).
When a plaintiff seeks to terminate an order, the plaintiff’s decision to terminate the order must be respected. Prior to terminating the order, however, the court may inquire whether any different or lesser order or component of an existing order (e.g., a refrain from abuse order and restriction on firearms) should be left in effect to accomplish the plaintiff’s purpose. See Guideline 5:08 Request by the Plaintiff to Terminate Abuse Prevention Order. It should be noted that if a no contact order has been imposed on a criminal case, contact remains prohibited despite the termination of the abuse prevention order unless and until the no contact order has been vacated by the criminal court. Additionally, if the judge has reason to believe that terminating the abuse prevention order will place any minor child(ren) in danger of physical harm or other abuse, the judge should advise the plaintiff that a report pursuant to G.L. c. 119, § 51A will be filed immediately. See Guideline 10:03 Care and Protection Proceedings.
When requesting identification from individuals seeking to modify or terminate an order, rather than photocopying the identification of the plaintiff, courts should consider employing a practice that will prevent confidential address information, or personal identifying information such as date of birth, from being available to the public. For example, the clerk’s office can note on the file that the identification was checked.
The Trial Court has promulgated a form that a plaintiff may use when seeking to modify or terminate an order; Plaintiff’s Motion to Modify or Terminate Abuse Prevention Order. Similarly, there is a form that can be used by a defendant; Defendant’s Motion to Modify or Terminate Abuse Prevention Order Restraining Order.
The clerk’s office should bring into the courtroom any related matters between the parties, including prior abuse prevention orders, complaints for abuse prevention orders, and any related criminal matters.
While case law has not specifically addressed whether written findings are required in response to a motion for expungement of a protective order, in the context of criminal cases, judges are required to make written findings in support of the denial or allowance of a motion to expunge. See Commonwealth v. K.W., 490 Mass. 619, 632 (2022).
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| Last updated: | October 20, 2025 |
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