258E Guideline 6:00: Initial Orders After Notice: General

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

Guideline 6:00

At a hearing where the defendant has notice, whether or not preceded by an ex parte order, the court may issue orders protecting the plaintiff from harassment upon a finding, by a preponderance of the evidence, that the plaintiff is suffering from harassment. The court may order the defendant to:

1. refrain from abusing or harassing the plaintiff, whether the defendant is an adult or a minor;
2. refrain from contacting the plaintiff, unless authorized by the court, whether the plaintiff is an adult or a minor;
3. remain away from the plaintiff’s household or workplace, whether the plaintiff is an adult or a minor; and,
4. pay the plaintiff monetary compensation for the losses suffered as a direct result of the harassment; which 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;
5. give the plaintiff 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;
6. refrain from abusing, threatening, taking, interfering with, transferring, encumbering, concealing, harming, or otherwise disposing of a domesticated animal; and
7. surrender or continue to surrender any license to carry and/or firearm identification card, and all firearms and ammunition.

The judge may also order that certain addresses not appear on the order.

The court may issue mutual harassment prevention orders, but absent a mutual order, a judge cannot order any affirmative relief to the defendant. See Guideline 6:06 Mutual Harassment Prevention Orders. Judges should advise the parties to keep a copy of the order with them to show police should questions arise about what is contained in the handwritten part of the order.

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

While ex parte orders require the court to find a substantial likelihood of immediate danger of harassment, the standard for orders after notice requires that the court find that the plaintiff is suffering from harassment. Both findings are made using the preponderance of the evidence standard. See F.K. v. S.C., 481 Mass. 325, 332 n. 11 (2019), citing Frizado v. Frizado, 420 Mass. 592, 597 (1995) (“[a]lthough not expressly stated in G. L. c. 258E, our prior jurisprudence indicates that a plaintiff who seeks a harassment prevention order under G. L. c. 258E, § 3 (a), must demonstrate by a preponderance of the evidence that the order is warranted.”). “Suffering from harassment” is determined by the definition of harassment as set forth in G.L. c. 258E, § 1. See Guideline 5:04 Standard and Burden of Proof.

Upon such a finding, G.L. c. 258E, § 3 lists the orders that are expressly authorized by law. Unlike G.L. c. 209A, there is no “catch-all provision” allowing for orders “including but not limited to” the statutorily listed relief which “protect the plaintiff from abuse.” G.L. c. 209A, § 3. See J.C. v. J.H., 92 Mass. App. Ct. 224, 230 (2017). In J.C. v. J.H., it does not appear that the Appeals Court considered the language in G.L. c. 258E, § 5, which permits a judge at an ex parte hearing to “enter such temporary orders as it deems necessary to protect a plaintiff from harassment.” Section 5 further provides that, if the defendant does not appear at the hearing after notice, “the temporary orders shall continue in effect without further order of the court.” To the extent necessary to protect the safety and security of the plaintiff, the court may craft necessary orders, which may include, for example, issuing an order to stay away from the plaintiff’s school in addition to or as a substitute for a workplace. As a practical matter, an order to stay away from the plaintiff may necessitate that the defendant vacate their residence. Such an order should only issue in cases which present where significant concerns for the plaintiff’s physical safety. See Guideline 4.01 Duration of Ex Parte Orders.

In considering a request for a stay away or no contact 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. A c. 258E order should not be used by a landlord to improperly evict their tenants. 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.

Each time an order issued under c. 258E is extended or modified, the judge must continue the firearm surrender order if returning the defendant’s firearms or firearms license would present a likelihood of harassment to the plaintiff, and, if so, must indicate that determination by checking the box that continues the order of surrender. See G.L. c. 258E, § 4B. If the judge continues the firearm surrender order, the judge should then determine whether there is a credible threat to the physical safety of the plaintiff, and, if so, indicate that finding on the order. See United States v. Rahimi, 144 S. Ct. 1889, 1901 (2024); Guideline 6:01 Initial Orders After Notice and Orders to Surrender Firearms, Ammunition, and Firearms Licenses (FID; LTC).

If the defendant did not appear at the hearing after notice and the defendant may be a non-resident, it is advised that, in addition to ordering surrender pursuant to G.L. c. 258E, § 4B, the court should also prohibit the defendant from having a firearm in the Commonwealth as this is a prohibitory order that does not require personal jurisdiction over the defendant. See Guideline 5:01B Personal Jurisdiction: Objection. Whenever a harassment prevention order includes a firearm surrender order, the court must transmit a report containing the defendant’s name and identifying information and a statement describing the defendant’s alleged conduct and relationship to the plaintiff to the Department of Criminal Justice Information System (DCJIS). See G.L. c. 258E, § 4C. Upon expiration of any such order, the court must notify DCJIS of the expiration, which is then required to notify the US Attorney General of the change. See id. This communication is accomplished by data entry by court staff.

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.”).

The judge should notify the parties that a “no contact” order includes direct or indirect contact, including electronic contact, such as through social media platforms. In structuring orders aimed at restricting contact between the defendant and the plaintiff, the court should refrain from blanket limitations on the defendant’s access to or statements on social media or other publicly available internet websites, 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).

When a “stay away” order from a particular location does not specify a distance, a defendant is prohibited from 

1. entering the boundary line of the property identified in the order,
2. taking actions that directly intrude on the property identified in the order, or
3. 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 were 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.

Under G.L. c. 258E, a judge is not authorized to make orders regarding the plaintiff's children as a part of the adult plaintiff’s order. Instead, a plaintiff seeking an order restricting the defendant from contacting the plaintiff's children would be required to initiate a complaint “on behalf of” the minor children and to demonstrate that the minor child is fearful of physical harm or damage to property as a result of the defendant’s conduct.

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 job 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.)

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, it the distribution of such images is at issue, it is advisable to make this prohibition explicit in the order.

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). At a hearing after notice, the judge should consider financial information and consider testimony provided by both parties. A violation of a compensation order can only be enforced by means of a contempt action, not as a violation subject to c. 258E, § 7. See Commentary to Guideline 8:00 Criminal Prosecution of Violations of Harassment Prevention Orders; Venue.

At the conclusion of the hearing, if issuing an order, the judge should read the terms of the order to the parties before signing it. This allows the judge to make sure that the order is complete and understandable, and allows the parties to bring to the judge’s attention any issues or other requested relief that may have been forgotten or overlooked.

A plaintiff may also seek other, more specific orders before the Superior Court through an injunction. See G.L. c. 214, § 1; Mass. R. Civ. P. 65. See also F.K. v. S.C., 481 Mass. 325, 326 (2019) (a single act of harassment may be sufficient for the Superior Court to issue a civil injunctive order pursuant to its equity jurisdiction).

Last updated:	October 20, 2025