Guideline 6:04
A copy of the order should be given in hand to the defendant by court personnel when the defendant is before the court for the hearing after notice or for any other purpose. This action should be recorded on the order. A copy of the order must also be sent to the appropriate police department.
If the defendant does not appear, the initial order after notice must be transmitted to the police for service in accordance with G.L. c. 258E, § 9, even if the defendant was served with the ex parte order. If the defendant is not a resident of Massachusetts, see Guideline 4:07 Service of Ex Parte Orders on Non-Resident 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. In such circumstances, the judge must make the finding on the order and indicate how the alternative service should be made. Guideline 6:08, Alternative Service Must be Authorized by a Judge. Notice by publication should not be utilized as it is ineffective and may, in some circumstances, violate the plaintiff’s privacy interests. See G.L. c. 41, § 97D. The police are required to make a return of service to the court. In any event, service should be made in whatever manner is most likely to result in actual notice to the defendant. See Guideline 8:01 Enforcing Violations of Harassment Prevention Orders. A Defendant Information Form should always accompany the police copy and the service copies of the order.
Commentary
General Laws c. 258E, § 9, second par., sets forth the required procedure for service of all orders issued under that law, including transmitting the documents to the appropriate police department, service by the police, and the filing of a return of service. However, if the defendant is before the court, direct in-hand service is appropriate and obviates the need for police service. Whenever it is possible, defendants should be instructed to remain in the courtroom until receiving the order. The plaintiff should receive a copy of the completed order before the defendant is served so that the plaintiff has the opportunity to leave the courthouse and avoid possible contact with the defendant. A copy of the order should nonetheless be sent to the appropriate police department for notification and enforcement purposes.
The judge and court personnel should be aware that a defendant subject to a recently issued harassment prevention order from that court may not yet have been served with a copy of that order. If a defendant is before the court at any other time, whether for related or unrelated criminal charges, or for subsequent c. 258E hearings, or for any other reason, they should be given a copy of the order and such notice should be reflected on the order.
If the defendant is not before the court when an order after notice is issued, the police are required to make in-hand service. This Guideline recommends in-hand service of each harassment prevention order issued by the court or service through whatever manner is most likely to result in actual notice to the defendant. Without such notice, the deterrent effect of the order is lost, and enforcement of a subsequent violation of the order is compromised. See Commonwealth v. Delaney, 425 Mass. 587, 591-592 (1997), cert denied, Delaney v. Commonwealth, 522 U.S. 1958 (1998). See also Commonwealth v. Henderson, 434 Mass. 155, 161-163 (2001). As long as the defendant has notice of the terms of the order, the order is enforceable.
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| Last updated: | October 20, 2025 |
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