Guideline 6:08
If the plaintiff appears in court seeking to extend an order after notice “at the date and time the order is to expire,” G.L. c. 209A, § 3, and the defendant was served with notice of that scheduled hearing in the order, and does not appear, the defendant has forfeited the right to be heard, and the same order may be extended upon the court finding a continued need for the order. The order can be extended for “any time reasonably necessary” to protect the plaintiff, G.L. c. 209A, § 3(e), or the court can make the order permanent.
If the defendant is not present, and the court cannot confirm that the defendant had notice of the hearing by being served with the initial order after notice, then the court should schedule a new hearing on the issue of further extending the order so that the defendant can receive notice of the hearing. The abuse prevention order should be extended pending the new hearing, to be held within ten business days, and the order, with notice of the hearing, should be transmitted to the police department for in-hand service on the defendant. See M.M. v. Doucette, 92 Mass. App. Ct. 32, 38 (2017).
The inquiry at an extension hearing 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. No new incident of abuse is required for extending the order. G.L. c. 209A, § 3 (“The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, or allowing an order to expire or be vacated, or for refusing to issue a new order”). Where the initial order was issued on the basis that the plaintiff has a reasonable fear of imminent serious physical harm, the inquiry is whether the plaintiff continues to have a reasonable fear of imminent physical harm. Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014). However, if there was attempted or actual physical abuse or involuntary sexual relations, “the abuse is the physical harm caused, and a judge may reasonably conclude that there is a continued need for the order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent.” Callahan, 85 Mass. App. Ct. at 374. In fact, “abuse occasioned by physical harm may cause wounds that produce long-lasting fear in the victim without new incitements.” Id. at 377. See also McIsaac v. Porter, 90 Mass. App. Ct. 730, 733-35 (2016) (“the infliction of some wounds may be so traumatic that the passage of time alone does not mitigate the victim’s fear of the perpetrator”).
While the judge is to consider the basis for the initial order in evaluating the risk of future abuse should the existing order expire, “this does not mean that the restrained party may challenge the evidence underlying the initial order.” Id., quoting Iamele v. Asselin, 444 Mass. 734, 740 (2005).
In evaluating whether the plaintiff has met the burden of establishing a continued need for the order, a judge must consider the totality of the circumstances of the parties’ relationship. In considering the risk of future abuse should the existing order expire, the factors that the judge should examine include, but are not limited to: “the defendant’s violations of protective orders, ongoing child custody or other litigation that engenders or is likely to engender hostility, the parties’ demeanor in court, the likelihood that the parties will encounter one another in the course of their usual activities (e.g., residential or workplace proximity, attendance at the same place of worship), and significant changes in the circumstances of the parties.” Iamele, 444 Mass. at 740. See also Vittone v. Clairmont, 64 Mass. App. Ct. 479, 486-489 (2005), rev. denied, Vittone v. Clairmont, 445 Mass. 1106 (2005) (discussing factors for a judge to consider when deciding whether there was a continued need for an abuse prevention order where parties have not been in contact for eight years).
If the order is extended, the defendant must be served with a copy. Any such order should immediately be entered in the Statewide Registry of Civil Restraining Orders.
Commentary
In some cases, at the expiration date of an initial order after notice it may be appropriate to issue an order for a period of time that is longer than an additional year, but less than a permanent order. See Crenshaw v. Macklin, 430 Mass. 633, 635 (2000) (upholding court’s authority to issue a permanent order following a “renewal hearing”). See also Commonwealth v. Leger, 52 Mass. App. Ct. 232, 239-241 (2001) (one-year time limitation for c. 209A orders applies only to initial hearing; judge may permanently extend order at subsequent hearing). In determining whether to issue a permanent order or an order for a particular period of years, the court may consider the severity and frequency of the violence involved, threats to do harm in the future and the ages of minor children, and any other relevant facts. For example, the court may determine that it is appropriate to extend an order until the youngest child of the parties reaches the age of eighteen.
Where protection is sought to be extended for a child named in a plaintiff’s order or a child who was the subject of an “on behalf of” order, and the child has reached the age of majority, the now-adult child must appear before the court. An on behalf of order can be amended to reflect it is no longer an on behalf of order and is in the now adult plaintiff’s name; a now-adult child included in a plaintiff’s order should seek continuation of any protection in an order in their own name. There is no case law addressing the enforcement of an abuse protection order against a child named in a plaintiff’s order after the child reaches the age of majority. Without further guidance, the enforceability 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), rev. denied, 495 Mass. 1107 (2025) (cannot violate a court order and then challenge its validity as a defense in a subsequent criminal prosecution).
No new application or complaint is required. However, the plaintiff should file a supplemental affidavit that explains the continued need for the order. The fact that the plaintiff may have moved is not a reason for denying the extension or requiring the plaintiff to reapply in the court with venue over the plaintiff’s current residence.
No new incident of abuse is required for extending the order. General Laws c. 209A, § 3 states that “the fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, or allowing an order to expire or be vacated, or for refusing to issue a new order.” The statute also provides that a court “shall not deny any complaint filed under this chapter solely because it was not filed within a particular time period after the last alleged incident of abuse.” The only criterion is a showing of continued need for the order. See, e.g., Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 773-774 (2005) (“[T]he fact abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient grounds for allowing an order to be vacated.”); Doe v. Keller, 57 Mass. App. Ct. 776, 778 (2003); Rauseo v. Rauseo, 50 Mass. App. Ct. 911, 913 (2001) (“At a hearing on the plaintiff’s request for an extension of an order . . . the plaintiff is not required to re-establish facts sufficient to support that initial grant of an abuse prevention order.”); and, Pike v. Maguire, 47 Mass. App. Ct. 929 (1999) (rescript). Contrast Banna v. Banna, 78 Mass. App. Ct. 34, 35-36 (2010) (where the only evidence at the hearing was the original affidavit, and the judge did not ascertain the nature of the interaction of the parties as it related to the likelihood of physical abuse in the future at the time of the hearing; merely asking the plaintiff if she wanted to extend the order was insufficient to extend the ex parte order). To obtain an extension of an abuse prevention order under c. 209A, the plaintiff must, by a preponderance of the evidence, demonstrate that an extension of the order is necessary to protect the plaintiff from the likelihood of “abuse” as defined in G.L. c. 209A, § 1. Iamele v. Asselin, 444 Mass. 734, 739 (2005).
Although the absence of abuse during the pendency of an order, by itself, will not bar the issuance of an extension of an abuse prevention order, Doe v. Keller, 57 Mass. App. Ct. 776, 778 (2003), where the issuance of the order is premised only on the plaintiff’s fear of imminent serious physical harm and not attempted or actual physical abuse or involuntary sexual relations, the court should consider all of the evidence in determining whether the plaintiff’s continuing fear is reasonable. Smith v. Jones, 75 Mass. App. Ct. 540, 543-546 (2009). In Smith, the Appeals Court held that since the defendant had not attempted to contact the plaintiff in three years and there was no additional evidence supporting the plaintiff’s fear of imminent physical harm, a permanent extension of the abuse prevention order on that basis was inappropriate. Id.
The extended order must be served upon the defendant in the same manner as the prior order. If the defendant is not present, the court should ask if the plaintiff knows of any new address for the defendant.
At the hearing, both parties should be informed that, as with all types of orders, the defendant must comply with a no-contact or vacate order unless and until those specific orders are terminated in writing by the court. The plaintiff has no authority to “waive” such orders, without going to court to ask to have them terminated, and the defendant who violates those orders is subject to mandatory, warrantless arrest, regardless of the plaintiff’s “consent.”
In prosecutions for violations of orders, actual service of an extended order may not be required if a defendant was served with a copy of the ex parte order. See Commonwealth v. Delaney, 425 Mass. 587, 591 (1997), cert. denied, Delaney v. Commonwealth, 522 U.S. 1058 (1998); Commonwealth v. Munafo, 54 Mass. App. Ct. 597, 600-602 (1998), rev. denied, Commonwealth v. Munafo, 428 Mass. 1110 (1998). Both Delaney and Munafo involved ex parte orders that were extended. This reasoning does not apply to a further extension of an initial order after notice. In Commonwealth v. Molloy, the Appeals Court reversed a conviction for violation of an order that had been extended annually, distinguishing between service of extension of temporary orders and such “successive annual extensions.” 44 Mass. App. Ct. 306, 308 (1998), rev. denied, Commonwealth v. Molloy, 427 Mass. 1107 (1998). See Guideline 6:08 Further Extending an Order After Notice on Its Expiration Date. The court stated, “the extension of an annual order pursuant to G.L. c. 209A, § 3, in contrast to a § 4 continuation of a temporary order, is . . . by no means automatic, even if a defendant fails to appear.” Id. at 309. The court added that there was no evidence at trial, “that anyone made a ‘conscientious and reasonable effort to serve . . . the defendant’ or that some alternative means of service was used to notify him.” Id. at 309. See Commentary to Guideline 4:07 Transmission of Ex Parte Orders to the Police for Service on the Defendant.
Contact
Phone
Address
| Last updated: | October 20, 2025 |
|---|