Guideline 3:00
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 exception, i.e., the right to proceed ex parte, is justified when there is “a substantial likelihood of immediate danger of harassment.” G.L. c. 258E, § 5.
Court personnel or others assisting the plaintiff in filing the complaint should not attempt to determine whether an ex parte hearing is appropriate. It is for the judge to decide whether the allegations meet the standard for issuance of an order under c. 258E and if so, whether to issue an order on ex parte basis or whether the matter should be scheduled for a hearing after notice to the defendant.
If a plaintiff is “unable to appear in court without severe hardship due to the plaintiff’s physical condition, a representative of the plaintiff may appear in court on the plaintiff’s behalf and file the requisite complaint with an affidavit setting forth the circumstances preventing the plaintiff from appearing personally.” G.L. c. 258E, § 6. See Guideline 1:07 Plaintiff Unable to Appear in Court. The plaintiff may also be permitted to appear via video conference.
Commentary
Because of the varied categories of behavior covered by c. 258E and the range of safety and volatility considerations involved, the judge is in the best position to determine not only whether the standard for issuing a c. 258E order has been met, but also whether sufficient grounds exist for issuing an ex parte order or whether it is more appropriate to schedule the matter for a hearing after notice to the defendant. Where relief is not warranted, the complaint should be denied without scheduling a hearing after notice.
The court must be cognizant that when a matter is scheduled for a hearing after notice, instead of issuing an ex parte order, the plaintiff will not have the protection of a c. 258E order in the interim between the filing of the complaint and the subsequent hearing. For this reason, such practice should be used only in situations in which it is clear that the delay and notice will not present a substantial likelihood of immediate danger of harassment to the plaintiff.
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| Last updated: | October 20, 2025 |
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