Guideline 5:05
If the defendant fails to appear at the hearing after notice, and the plaintiff does appear, and if there is evidence of notice of the hearing to the defendant and no reason for excusing the defendant’s absence, the court should consider the defendant to have forfeited their opportunity to be heard. In such cases, the order after notice may issue with any relief as the court deems appropriate. The defendant must be served with any order issued after notice, regardless of whether there has been a change to terms ordered in a prior ex parte order.
If there is no return of service to the court of the prior order, and no other acceptable evidence that the defendant has received notice of the hearing, or if the court is given an acceptable reason for the defendant’s absence, the hearing should be rescheduled to a date within the next ten court business days. The ex parte order should be extended during that time. New notice of the rescheduled hearing should be provided to the defendant. See Guideline 4:06 Transmission of Ex Parte Orders to the Police for Service on the Defendant.
Where in-hand service cannot be made because of lack of knowledge of the defendant’s whereabouts, evidence that the defendant is avoiding service, or for any other reason, a judge, upon finding that the appropriate law enforcement agency has made a conscientious and reasonable effort to effect service, but has nevertheless failed, can authorize service by alternative means including service at last and usual address, leaving at defendant’s work address or an address the defendant is known to frequent (e.g., parents’ home), by e-mail, etc. See Guideline 4:08 Alternative Service Must Be Authorized by a Judge.
If the defendant is incarcerated at the time of the hearing after notice, the court is under no obligation to issue a writ of habeas corpus absent a request by the defendant. But the court should ensure that proper notice and information about how to request an opportunity to be heard in court has been given to the defendant. As noted in Guideline 4:06 Transmission of Ex Parte Orders to the Police for Service on the Defendant, the preferred practice is to obtain the defendant’s presence for a two-party hearing so that notice is clear in the event the defendant is subsequently charged with violating the order. This can be done either by utilizing the videoconferencing system or issuing a writ of habeas corpus sua sponte, although this may require scheduling a new date for the hearing.
Commentary
Due process requires that no order after notice be issued against a person without actual notice and the opportunity to be heard. This can be waived by a knowing failure to appear. Commonwealth v. Henderson, 434 Mass. 155, 163 (2001) (defendant waived opportunity to be heard by receiving actual notice of scheduled hearing date and failing to appear at hearing without good cause). Compare M.M. v. Doucette, 92 Mass. App. Ct. 32, 36 (2017) (incarcerated defendant entitled to be heard where evidence did not establish that he received notice of the hearing and he subsequently requested to be heard upon being served with the extended order).
The best evidence that the defendant received notice is the return of service that the police are required to make to document in-hand service. If the case must be continued because there is no available evidence that the defendant received notice, the same ten-day time limit as for ex parte orders should be observed.
To prevent a long series of extended ex parte orders where in-hand service has not been made, the court can authorize service by alternative means upon a finding that the appropriate law enforcement agency has made a conscientious and reasonable effort to serve the defendant. If alternative service is authorized, the judge must specify the means of alternative service permitted. Examples of alternative service are service at the last and usual address, leaving the order at the defendant’s work address or an address the defendant is known to frequent such as a parent’s home, or by e-mail. Notification by telephone should be avoided if there is any other reasonable alternative. Zullo v. Gaguen, 423 Mass. 679, 681 (1996). See Commentary to Guideline 4:06 Transmission of Ex Parte Orders to the Police for Service on the Defendant; Guideline 4:08 Alternative Service Must Be Authorized by a Judge; and Guideline 6:04 Service of Initial Orders After Notice on the Defendant.
General Laws c. 258E, § 5, last par., provides that, “[i]f the defendant does not appear at such subsequent hearing [i.e. the hearing after notice], the temporary orders shall continue in effect without further order of the court.” However, case law is clear that the burden is always on the plaintiff to establish, by a preponderance of the evidence, facts justifying the issuance of an order. See Iamele v. Asselin, 444 Mass. 734, 736 (2005). See also Guideline 5:04 Standard and Burden of Proof. Thus, even when the defendant does not appear, and there is evidence of notice, the court must be satisfied that sufficient grounds exist for issuing an order after notice.
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| Last updated: | October 20, 2025 |
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