258E Guideline 1:02: Due Process Considerations

Part of the Guidelines of Judicial Practice: Harassment Prevention Proceedings.

Guideline 1:02

The adjudication of cases by a neutral court is a fundamental element of due process. In c. 258E cases, as in all other court proceedings, the court is responsible for protecting the rights of the parties and adjudicating each complaint on a case-by-case basis.

Particular care is warranted regarding the following:

1. An order should not issue unless the court is satisfied that the facts alleged constitute harassment in one of the forms defined in G.L. c. 258E, § 1, or, in the context of an ex parte order, a substantial likelihood of immediate danger of harassment. See Guideline 1:00A Subject Matter Jurisdiction; Eligibility for Relief.
2. The court should require evidence of notice to the defendant before issuing an order for longer than ten court business days. See Guideline 5:05 Failure of the Defendant to Appear.
3. When possible (and when effective service can be clearly made), the court should consider limiting the duration of an ex parte order to fewer than the maximum ten days in order to minimize the deprivation of the defendant’s rights before the defendant is given notice and an opportunity to be heard. See Guideline 5:00 Scheduling Hearings After Notice.
4. The plaintiff must prove, by a preponderance of the credible evidence, that the requested relief is legally warranted. See Guideline 3:05 Standard and Burden of Proof for c. 258E Order; Guideline 3:06 Rules of Evidence; Guideline 5:03 Rules of Evidence; and, Guideline 5:04 Standard and Burden of Proof.
5. In appropriate circumstances, the court may decline to issue an ex parte order and instead delay action on the complaint until both parties have been given notice and an opportunity to be heard. However, because the plaintiff will not have the protection of a c. 258E order in the interim between the filing of the complaint and the hearing after notice, such practice should only be used in situations where it is clear that the delay will not present a substantial likelihood of immediate danger of harassment to the plaintiff. Where relief is not warranted, the complaint should be denied without scheduling a hearing after notice. Recognizing the protective purpose of c. 258E, where a complaint has been denied after an ex parte hearing held without notice to the defendant, the court need not notify the defendant of the court’s action.
6. Each party must be given a meaningful opportunity to challenge the other party’s evidence in any contested hearing, although the court should not permit harassment or intimidation. See Guideline 5:01 Conduct of Hearings After Notice When Both Parties Appear: General.

Commentary

As in the context of c. 209A, basic due process considerations apply in harassment prevention order proceedings under c. 258E. See R.S. v. A.P.B., 95 Mass. App. Ct. 372, 373 n.4 (2019), citing Frizado v. Frizado, 420 Mass. 592, 596-598 (1995). “Whether a defendant’s constitutional rights have been violated will depend on the fairness of a particular proceeding.” Id. at 598. See also C.O. v. M.M., 442 Mass. 648, 656-659 (2004) (court found that defendant’s right to due process had been denied where defendant was not given the opportunity to present or cross-examine witnesses during a hearing on the question of continuing an ex parte order). Proceeding with a hearing on a c. 258E complaint without prior notice to the defendant and a right to be heard constitutes an exception to fundamental due process. This emergency exception, i.e., the right to proceed ex parte, is justified only when there is “a substantial likelihood of immediate danger of harassment.” G.L. c. 258E, § 5.

Massachusetts courts may issue a harassment prevention order under c. 258E against an out-of-state defendant, as in c. 209A cases, even where the court does not have personal jurisdiction over the defendant. See Caplan v. Donovan, 450 Mass. 463, 463-64 (2008), cert. denied, Donovan v. Caplan, 553 U.S. 1018 (2008). However, such orders “cannot impose any personal obligations on a defendant, and [are] limited to prohibiting actions of the defendant.” Id. at 469-471. See Guideline 3:02A Personal Jurisdiction over a Non-Resident Defendant and Guideline 4:02 Ex Parte Orders and a Non-Resident Defendant.

Last updated:	October 20, 2025