Guideline 4:00
If the plaintiff demonstrates, by a preponderance of the evidence, a “substantial likelihood of immediate danger of harassment,” as required by statute, the court should issue an ex parte order, to be effective until the hearing after notice can be held. See Guideline 3:00 Ex Parte Hearings: General. The court may order the defendant to:
- refrain from abusing or harassing the plaintiff, whether the defendant is an adult or a minor;
- refrain from contacting the plaintiff, unless authorized by the court, whether the plaintiff is an adult or a minor;
- remain away from the plaintiff’s household or workplace, whether the plaintiff is an adult or a minor;
- pay the plaintiff monetary compensation for the losses suffered as a direct result of the harassment; provided, however, that compensatory damages shall include, but shall not be limited to, loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement of locks, medical expenses, cost for obtaining an unlisted phone number, and reasonable attorney’s fees;
- ordering the possession, care, and control of any domesticated animal owned, possessed, leased, kept, or held by either party or any minor child(ren) residing in the household to the plaintiff or petitioner; and
- ordering the defendant to refrain from abusing, threatening, taking, interfering with, transferring, encumbering, concealing, harming, or otherwise disposing of a domesticated animal.
If issuing an ex parte order, the defendant must be ordered to surrender any license to carry firearms and firearms identification card, and any and all firearms and ammunition. See Guideline 4:03 Ex Parte Orders to Surrender Firearms, Ammunition, and Firearm Licenses (FID; LTC).
The plaintiff’s residential and workplace addresses are to be entered on the order and accessible to the defendant unless the plaintiff requests that this information be withheld from the order. G.L. c. 258E, § 10. See Guideline 1:04 Public Access to c. 258E Case Files; Confidentiality of Records and Address Information. In circumstances where the court issues a stay-away order and the plaintiff has requested address information be withheld from the defendant, the order should be entered as “wherever that may be,” and the appropriate box(es) should be checked so that the addresses will not appear on the order.
Commentary
“General Laws c. 258E, § 3(a), provides that ‘[a] person [suffering from harassment] may petition the court ... for an order that the defendant: (i) refrain from abusing or harassing the plaintiff ... ; (ii) refrain from contacting the plaintiff, unless authorized by the court ... ; (iii) remain away from the plaintiff's household or workplace ... ; and (iv) pay the plaintiff monetary compensation for the losses suffered as a direct result of the harassment.’” A petitioner can also request an order for the defendant to “refrain from abusing, threatening, taking, interfering with, transferring, encumbering, concealing, harming or otherwise disposing of” … “any domesticated animal owned, possessed, leased, kept or held by either party or a minor child residing in the household to the plaintiff or petitioner.” G.L. c. 209A, § 11.
Additionally, as of October 2, 2024, Chapter 258E mandates the judge issuing an ex parte harassment prevention order to also issue an order to surrender firearms, ammunition and licenses to carry and/or firearm identification cards. G.L. c. 258E, § 4A, as added by St. 2024, c. 135, § 92. The issuing judge should note the firearm surrender on the ex parte order and also indicate whether or not the defendant poses a credible threat to the physical safety of the plaintiff. See United States v. Rahimi, 144 S. Ct. 1889, 1901 (2024); Commentary to Guideline 4:03 Ex Parte Orders to Surrender Firearms, Ammunition, and Firearms Licenses (FID; LTC); and Commentary to Guideline 6:00 Initial Orders After Notice: General.
General Laws c. 209A, § 3 provides for a broader range of protection, as “‘[a] person suffering from abuse ... may file a complaint ... requesting protection from such abuse, including, but not limited to, the following orders.’” Ellis E. v. Finn F., 96 Mass. App. Ct. 433, 443–444 (2019), quoting G.L. c. 209A, § 3. Because of this differing language, the Appeals Court has held that the authority granted to the court under c. 258E is limited to the relief listed. See J.C. v. J.H., 92 Mass. App. Ct. 224, 230 (2017).
While the types of relief available under c. 258E, § 3 are not as extensive as c. 209A, § 3, the protective purpose of ex parte orders may be interpreted broadly. The court should fashion its relief order in response to the need for protection shown by the facts presented at the hearing. Chapter 258E, § 5 provides that, where the court finds a substantial likelihood of immediate danger of harassment, it may make “temporary orders as it deems necessary to protect a plaintiff from harassment.” While there is no provision in c. 258E permitting the court to order the defendant to vacate a residence, a stay away order may have the same effect and, while it should not ordinarily be used to remove a defendant from a residence, such an order may, based on the safety considerations at hand, be appropriate under the circumstances. See G.L. c. 258E, § 5. Additionally, when justified by the facts, the court has authority to order a defendant to stay away from a particular school or job site, even if the defendant attends the school or works at the same location. In such cases, the plaintiff should be provided with an additional copy of the order for the school or employer, so that responsible parties in those places will be notified of the court order, as well as of the possibility of danger to the plaintiff.
Unlike c. 209A, § 3, which allows a judge to order a defendant to stay away from and not contact the plaintiff’s children without a separate or specific showing of imminent likelihood of danger of abuse to those children, a judge is not similarly authorized to make orders regarding the plaintiff’s children under c. 258E, § 3. A plaintiff seeking an order restricting the defendant from contact with the plaintiff’s children would be required to initiate a complaint “on behalf of” the minor children.
The terms of the orders must be reasonable. They must be clear in their language, so that the parties as well as the police know what has been ordered and what conduct would violate the order. Plain language should be used (e.g., “100 yards,” not “the length of a football field”). In particular, an order which requires the defendant to stay a great distance, such as 1,000 yards, or even 500 or 200 yards, away from the plaintiff is difficult to enforce because it is almost impossible for such a defendant to know when they are in violation. Orders that require a defendant to stay from twenty to 100 yards away from the plaintiff are usually sufficient. An order requiring the defendant to stay a particular distance away from the plaintiff and the plaintiff’s workplace has been interpreted to require the defendant to stay that same distance away from “all of the property on which the workplace is located including the adjacent parking lot.” Commonwealth v. O’Shea, 41 Mass. App. Ct. 115, 118 (1996), overruled on other grounds, Commonwealth v. Delaney, 425 Mass. 587 (1997). A defendant may be found guilty of a violation of an order to stay away from the protected person’s workplace, even if the plaintiff is not at work at the time. See Commonwealth v. Habenstreit, 57 Mass. App. Ct. 785, 787 (2003), rev. denied, Commonwealth v. Habenstreit, 439 Mass. 785 (2003) (since the purpose of the abuse prevention order is to provide a safe haven for the victim and to lessen the chances for contact between the victim and the defendant, to interpret the order to apply only when the victim was physically present would “encourage a defendant to keep himself or herself informed about a protected person’s schedule,” a result that would be contrary to the intent of the order itself.)
Judges should be mindful when crafting harassment prevention orders that, with respect to the terms “stay away” and “no contact,” they are “not interchangeable.” However, a “no contact” order includes a “stay away” order. See Commonwealth v. Finase, 435 Mass. 310, 314 (2001) (“Pursuant to a ‘stay away’ order, the defendant may not come within a specified distance of the protected party, usually stated in the order, but written or oral contact between the parties is not prohibited. By contrast, a ‘no contact’ order mandates that the defendant not communicate by any means with the protected party, in addition to remaining physically separated. Thus, a ‘no contact’ order is broader than a ‘stay away’ order.”).
When a “stay away” order from a particular location does not specify a distance, a defendant is prohibited from
- entering the boundary line of the property identified in the order,
- taking actions that directly intrude on the property identified in the order, or
- being in a position sufficiently proximate to the property identified in the order such that the defendant would be able to harass or contact the plaintiff, in the event that the plaintiff was on the property, or entering or leaving it, even if the plaintiff is not present.
See Commonwealth v. Watson, 94 Mass. App. Ct. 244, 248-49 (2018) (defendant violated stay away order where defendant was immediately outside the property boundary long enough to be observed by a person who called the police and for the police to arrive five minutes later); Commonwealth v. Telcinord, 94 Mass. App. Ct. 232, 241 (2018) (defendant violated order to stay away from victim’s residence where defendant parked on the victim’s street in clear sight of the victim’s residence). In setting out this standard, the Appeals Court noted that there certainly would be circumstances when a judge may consider it more appropriate to set a specific distance to stay away from a fixed location rather than issuing a general stay away order, but made clear that whether to do so was left to the “broad discretion” of the judge issuing the order “who is in the best position to determine what the circumstances require to create a safe haven for the protected party.” Telcinord, 94 Mass. App. Ct. at 240-41.
In considering a request for a stay away order, it is important for the judge to be mindful of potential landlord and tenant disputes and any other actions pending in the Housing Court or in summary process actions in the District Court. See C.E.R. v. P.C., 91 Mass. App. Ct. 124, 124–25 (2017). See Guideline 4:04 Ex Parte Orders in the Landlord Tenant Context.
The judge should notify the plaintiff that a “no contact” order prohibits direct or indirect contact, including electronic contact, such as through social media platforms. The court may not, however, fashion a blanket order that restricts a defendant from all internet use, as that would interfere with the First Amendment rights of the defendant. See Shak v. Shak, 484 Mass. 658, 661-663 (2020) (order that each party shall not disparage the other on social media or other internet medium was deemed an unconstitutional prior restraint on speech not justified by a compelling interest).
Because the definition of harassment now includes distribution of nude or sexual images in violation of G.L. c. 265, § 43A(b), an order prohibiting a defendant from harassing a plaintiff would also include an order prohibiting the distribution of nude or partially nude images. See G.L. c. 265, § 43A(b). While this conduct would fall under an order not to “harass” a plaintiff, if the distribution of such images is at issue, it is advisable to make this prohibition explicit in the order.
The plaintiff should never be discouraged from seeking compensation, but should be told that the court will consider these issues at the hearing after notice, when the defendant has an opportunity to be heard. See Guideline 6:00 Initial Orders After Notice: General.
The court is authorized to award compensatory damages that “shall include, but shall not be limited to, loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement of locks, medical expenses, cost for obtaining an unlisted phone number and reasonable attorney’s fees.” G.L. c. 258E, § 3(a)(iv). The plaintiff should be told to bring relevant information to the hearing after notice. There are several significant difficulties with ordering compensation on the ex parte order. First, it is unlikely that the court will obtain adequate information in an ex parte hearing to make an informed decision in these matters, which can require substantial fact-finding and testimony from both sides. The hearing after notice provides a more appropriate forum for such fact-finding. Second, even if an order for compensation were issued, it is not likely to be enforced prior to the expiration of the ex parte order. In fact, attempts by the plaintiff to demand payment from the defendant before the hearing after notice could be the occasion of further danger of harassment. Finally, a violation of a compensation order can only be enforced by means of a contempt action, not as a violation of c. 258E, § 8 and is only enforceable while the order is in effect. See Commentary to Guideline 8:00 Criminal Prosecution of Violations of Harassment Prevention Orders; Venue.
At the conclusion of the ex parte hearing, if issuing an order, the judge should read the terms of the order to the plaintiff before signing it. This allows the judge to make sure that the order is complete and understandable and allows a plaintiff to bring to the judge’s attention any requested relief that may have been forgotten or overlooked.
When a plaintiff requests that the address information be withheld from the order, it will not be transmitted to the police; rather, police would only be able to access this information directly from the court during court business hours. The judge should alert the plaintiff to this as the plaintiff may choose to notify the police department with jurisdiction over their residential and workplace addresses so that the police can access this information at any time. If the court provides the plaintiff’s confidential address information to law enforcement, it must remain confidential in the hands of law enforcement.
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| Last updated: | October 20, 2025 |
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