Guideline 6:05A
The District Court, Boston Municipal Court, and Superior Court are authorized to award the plaintiff temporary custody of a minor child pursuant to c. 209A. A plaintiff cannot be awarded custody pursuant to c. 209A when a third party has custody of the minor child(ren). If issuing a custody or no contact order that is inconsistent with an existing order by the Probate and Family Court, the court issuing the conflicting order must provide a copy of the order to the Probate and Family Court Department that issued the prior or pending custody order. Such order may be superseded by a subsequent custody order issued by the Probate and Family Court Department, which shall retain final jurisdiction over any custody order subject to any subsequent emergency relief ordered under c. 209A by a court department other than the Probate and Family Court. See Guideline 1:11 Plaintiff’s Requested Order Will Contradict Existing Probate and Family Court Order.
More often, the inconsistent order will not be a conflicting custody order, but rather a no contact order that would affect parenting time rights. See Guideline 6:06 Parenting Time Orders Exclusive to Probate and Family Court. The same factors considered at an ex parte hearing should be considered at an order after notice, see Guideline 4:03A: Ex Parte Orders Involving Minor Children. 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” (OBO). This would allow the order to be continued by the child past their eighteenth birthday. When children are listed as part of the plaintiff’s order, there may be ambiguity in the enforcement of such orders as to the child after they reach the age of majority.
Commentary
Upon the issuance of a custody or no contact order that is inconsistent with an existing order issued by the Probate and Family Court, follow the procedure set forth in Guideline 1:11 Plaintiff’s Requested Order Will Contradict Existing Probate and Family Court Order. If there is an existing custody order issued by another state, see Guideline 12:08 Interstate Custody Issues.
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. This is because 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, 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), an “on behalf of” order may be less ambiguous.
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| Last updated: | October 20, 2025 |
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