Guideline 6:07
If the plaintiff appears in court seeking to extend an order after notice “at the date and time the order is to expire,” G.L. c. 258E, § 3(d), and the defendant was served with notice of that scheduled hearing in the order, the defendant has forfeited the right to be heard, and the same order may be extended upon the court finding a continued need for the order. The order can be extended for “any additional time reasonably necessary” to protect the plaintiff, G.L. c. 258E, § 3(d), or the court can make the order permanent.
If the defendant is not present, and the court cannot confirm that the defendant had notice of the hearing by being served with the initial order after notice, then the court should schedule a new hearing on the issue of further extending the order so that the defendant can receive notice of the hearing. The harassment prevention order should be extended pending the new hearing, to be held within ten business days, and the order, with notice of the hearing, should be transmitted to the police department for in-hand service on the defendant. See M.M. v. Doucette, 92 Mass. App. Ct. 32, 38 (2017).
The inquiry at an extension hearing is whether the plaintiff has shown by a preponderance of the evidence that an extension of the order is necessary to protect the plaintiff from the likelihood of harassment. No new incident of harassment is required for extending the order. G.L. c. 258E, §3(d) (“The fact that harassment has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, or allowing an order to expire or be vacated, or for refusing to issue a new order.”).
While the judge is to consider the basis for the initial order in evaluating the risk of future harassment should the existing order expire, “this does not mean that the restrained party may challenge the evidence underlying the initial order.” McIsaac v. Porter, 90 Mass. App. Ct. 730, 733-35 (2016), quoting Iamele v. Asselin, 444 Mass. 734, 740 (2005).
The court should extend a harassment prevention order where the plaintiff has suffered from one of the sex offenses enumerated in G.L. c 258E, § 1 and the extension of the order is necessary to protect the plaintiff from the impact of that past sex offense. In this circumstance, even where another sexual assault is not imminent, the plaintiff need not re-establish facts sufficient to prove the original sex offense that served as a basis for the initial harassment prevention order.
If the order is extended, the defendant must be served with a copy. Any such order should immediately be entered in the State Registry of Civil Restraining Orders.
Commentary
In some cases, at the expiration date of an initial order after notice it may be appropriate to issue an order for a period of time that is longer than an additional year but less than a permanent order. See Crenshaw v. Macklin, 430 Mass. 633, 635 (2000) (upholding court’s authority to issue a permanent order following a “renewal hearing”). See also Commonwealth v. Leger, 52 Mass. App. Ct. 232, 239-241 (2001) (one-year time limitation for c. 209A orders applies only to initial hearing; judge may permanently extend order at subsequent hearing). In determining whether to issue a permanent order or an order for a particular term of years, the court may consider the severity and frequency of the violence involved, threats to do harm in the future and any other relevant facts.
No new application or complaint is required. However, the plaintiff should file a supplemental affidavit that explains the continued need for the order. The fact that the plaintiff may have moved is not a reason for denying the extension or requiring the plaintiff to reapply in the court with venue over the plaintiff’s current residence.
No new incident of harassment is required for extending the order. General Laws c. 258E, § 3 states that “the fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, or allowing an order to expire or be vacated, or for refusing to issue a new order.” The statute also provides that a court “shall not deny any complaint filed under this chapter solely because it was not filed within a particular time period after the last alleged incident of harassment.” The only criterion is a showing of continued need for the order. See, e.g., Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 773-774 (2005) (“[T]he fact abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient grounds for allowing an order to be vacated.”); Doe v. Keller, 57 Mass. App. Ct. 776, 778 (2003); Rauseo v. Rauseo, 50 Mass. App. Ct. 911, 913 (2001) (“At a hearing on the plaintiff’s request for an extension of an order . . . the plaintiff is not required to re-establish facts sufficient to support that initial grant of an abuse prevention order.”); Pike v. Maguire, 47 Mass. App. Ct. 929 (1999) (rescript).
The Appeals Court has specifically addressed extension of c. 258E orders in the context of a past sexual offense. The court “should extend a harassment prevention order where the plaintiff has suffered from a past sex offense delineated in G. L. c. 258E, § 1, and the order is necessary to protect her from the impact of that past sex offense.” Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 257 (2022). Even if another sexual assault or other physical harm is not imminent, a harassment prevention order may be necessary to protect the plaintiff from the impact of that past sexual abuse. See Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 187 (2020). “[A]n extension is warranted if ‘there is a continued need for the order because the damage resulting from that physical harm [or sexual assault] affects the victim even when further physical attack [or sexual assault] is not reasonably imminent.’” Vera V. v. Seymour S., 98 Mass. App. Ct. 315, 317 (2020), quoting Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014). The plaintiff is not required to re-establish facts sufficient to support the initial harassment prevention order. See Yasmin Y., 101 Mass. App. Ct. at 258. Where a plaintiff has obtained a harassment prevention order based on an act of sexual violence, allows the order to lapse, and subsequently seeks a harassment order against the defendant on the basis of the same conduct, the judge may rely on collateral estoppel principles to preclude the defendant from re-litigating “harassment.” See Wilhelmina W. v. Uri U., 102 Mass. App. Ct. 634, 638-639 (2023). Under these circumstances, the plaintiff is only required to prove a need for protection from the impact of the harassment to justify issuance of a second order. Id. at 640.
To show a continued need for an order based on a finding that the harassing conduct caused fear as opposed to physical harm, the plaintiff must, by a preponderance of the evidence, demonstrate that the plaintiff continues to be in fear of harassment and that an extension of the order is necessary to protect the plaintiff from the likelihood of further harassment. See Banna v. Banna, 78 Mass. App. Ct. 34, 36 (2010) (plaintiff must demonstrate a present reasonable fear; to assess whether facts justify extension of the order, merely asking plaintiff whether she wanted to extend the prior order was insufficient).
While the judge is to consider the basis for the initial order in evaluating whether an extension is necessary to protect the plaintiff from harassment, “this does not mean that the restrained party may challenge the evidence underlying the initial order.” Iamele v. Asselin, 444 Mass. 734, 740 (2005).
The extended order must be served upon the defendant in the same manner as the prior order. If the defendant is not present, the court should ask if the plaintiff knows of any new address for the defendant.
At the hearing, both parties should be informed that, as with all types of orders, the defendant must comply with a no-contact or stay-away order unless and until those specific orders are terminated in writing by the court. The plaintiff has no authority to “waive” such orders, without going to court to ask to have them terminated, and the defendant who violates those orders may be subject to arrest, regardless of the plaintiff’s “consent.”
In prosecutions for violations of orders, actual service of an extended order may not be required if a defendant was served with a copy of the ex parte order. See Commonwealth v. Delaney, 425 Mass. 587, 591 (1997), cert. denied, Delaney v. Commonwealth, 522 U.S. 1058 (1998); Commonwealth v. Munafo, 54 Mass. App. Ct. 597, 600-602 (1998), rev. denied, Commonwealth v. Munafo, 428 Mass. 1110 (1998). Both Delaney and Munafo involved ex parte orders that were extended. This reasoning does not apply to a further extension of an initial order after notice. In Commonwealth v. Molloy, the Appeals Court reversed a conviction for violation of an order that had been extended annually, distinguishing between service of extension of temporary orders and such successive annual extensions. See 44 Mass. App. Ct. 306, 308 (1998), rev. denied, Commonwealth v. Molloy, 427 Mass. 1107 (1998). See Guideline 6:07 Further Extending an Order After Notice on Its Expiration Date. The court stated, “the extension of an annual order pursuant to [G.L. c. 209A] § 3, in contrast to a § 4 continuation of a temporary order, is . . . by no means automatic, even if a defendant fails to appear.” Id. at 309. The court added that there was no evidence at trial, “that anyone made a ‘conscientious and reasonable effort to serve . . . the defendant’ or that some alternative means of service was used to notify him.” Id. at 309. See Commentary to Guideline 4:06 Transmission of Ex Parte Orders to the Police for Service on the Defendant.
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| Last updated: | October 20, 2025 |
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