Guideline 3:03
All c. 258E hearings should be held in the courtroom and recorded. They should never be held in the judge’s lobby or off the record.
As a general rule, ex parte hearings should not be conducted at sidebar. There are, however, specific circumstances in which sidebar discussions may be appropriate, including cases involving sensitive issues such as sexual assault or abuse of children.
Although the hearings should presumptively be open to the public, in the most extraordinary circumstances, for good cause shown and based on specific findings indicated on the record, the court may close the courtroom.
Commentary
Despite the emotional and volatile issues often involved in a c. 258E ex parte hearing, the matter should be treated like any other civil proceeding and heard in open court. “Generally, public access to judicial proceedings may not be abridged absent an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Boston Herald, Inc. v. Superior Court Dep’t of the Trial Court, 421 Mass. 502, 505 (1995) (internal quotation and citation omitted). Closure of the courtroom may occur if the following four requirements are met: “[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the judge must consider reasonable alternatives to closing the proceeding, and [4] the judge must make findings adequate to support the closure. Further, the findings must be particularized and supported by the record.” Id. at 506, citing Waller v. Georgia, 467 U.S. 39, 48 (1984). While sensitive issues may arise that would be appropriate to address at sidebar, as a general rule, ex parte hearings should not be conducted at sidebar for many reasons. In appropriate cases, the judge might consider moving the matter to a less crowded courtroom rather than bringing the plaintiff to sidebar.
Like any other hearing, the proceedings in the courtroom should be recorded and the public has a right to access these recordings. The public does not, however, have the right to access the plaintiff’s residential address, residential telephone number, workplace name, workplace address and workplace telephone number. G.L. c. 258E, § 10. Such information “shall be confidential and withheld from public inspection.” Id. If, during the ex parte hearing it is necessary to disclose this information, the judge should direct the clerk to seal that portion of the audio so that this information remains inaccessible to the public. See Guideline 1:04 Public Access to c. 258E Case Files; Confidentiality of Records and Address Information.
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| Last updated: | October 20, 2025 |
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