Guideline 9:00
During the hours when the court is not open for business, a judge is available through the Judicial Response System to assist parties seeking a c. 258E harassment prevention order. In conducting this hearing, the on-call judge should follow the Guidelines established for conducting an ex parte hearing and issuing an ex parte order. See Guideline 3:00, et. seq., Ex Parte Hearings and Guideline 4:00, et. seq., Ex Parte Orders, Usually, these hearings are conducted by telephone, with the plaintiff relating the facts directly to the judge.
Under the Judicial Response System, the police department will contact the regional on-call judge. Before contacting the judge, the police must:
- have the plaintiff fill out a c. 258E complaint and affidavit, unless the plaintiff is physically unable to do so;
- run the defendant’s criminal record, including both in-state and out-of-state, and obtain information from the Statewide Registry of Civil Restraining Orders, as to any current or prior abuse or harassment prevention orders; and,
- run a Warrant Management System (WMS) check of the defendant.
Once the police department has provided this information to the judge, the judge should speak directly to the plaintiff. The judge should ascertain the reasons for the plaintiff’s request for an emergency harassment prevention order, and the requested relief sought by the plaintiff. Applying the same standard as an in-court ex parte hearing, the judge must determine whether a substantial likelihood of immediate danger of harassment exists. If the judge decides to issue an order, they should review the terms of the order with the plaintiff. The plaintiff should be told that the emergency order is only a temporary order, and will only be in effect until 4:00 P.M. on the next court business day. The plaintiff should be told that the order will be heard on the next court business day and that if the plaintiff wants the order extended, the plaintiff must appear in court at 9:00 A.M. for a hearing before the judge. Otherwise, the order will expire at 4:00 P.M. if the plaintiff does not appear.
When serving on the Judicial Response System, the judge is not limited to returning the order to the judge’s court department or a court with venue. Rather, the judge can return the order to the most logical court location. This may be the court where the defendant is scheduled to appear on criminal charges so that a hearing may be held with both parties present, rather than an ex parte hearing in a District Court or Boston Municipal Court with venue over the plaintiff’s residence. Where no criminal charges are pending, the order could be returned to a court convenient to where the plaintiff works if the plaintiff so requests. If return is made to a court without venue, the judge should advise the plaintiff that the hearing may have to be continued if the defendant objects. See Guideline 5:01A Venue: Objection.
The on-call judge should then review with the police officer the terms of the order form to ensure that it is properly filled out and that it accurately reflects the judge’s decision. It is especially important that the date, time, and location of the next hearing date be noted accurately. The defendant must then be served by police with the order. If the defendant can be promptly served with a copy of the emergency order prior to the scheduled hearing, the hearing after notice can proceed at that scheduled hearing.
The police should deliver all of the paperwork, including the order, to the court where the order is returnable on the next business day when the clerk’s office is open, whether or not there is a judge sitting in that court on that date. All emergency orders issued through the Judicial Response System must be certified and docketed in the court to which it was returned. The order should also be entered that day into the Statewide Registry of Civil Restraining Orders.
If a plaintiff seeking temporary relief is unable to appear in court on the next court day to file the complaint without severe hardship due to a physical condition, a representative may appear and file the complaint with an affidavit that indicates the circumstances that prevent the plaintiff from appearing. See G.L. c. 258E, § 6. See also Guideline 1:07 Plaintiff Unable to Appear in Court.
Commentary
The statewide Judicial Response System ensures that a judge is always available during non-court hours to handle a variety of emergency matters. The vast majority of calls to the Judicial Response System involve requests for the issuance of c. 209A abuse prevention orders and c. 258E harassment prevention orders. Virtually all of these hearings are conducted over the telephone, although there is nothing to prevent a judge in a particular case from going to a police station or hospital or other location to conduct the hearing. Conducting these proceedings by telephone is expressly authorized by G.L. c. 258E, § 6. Often, the hearing may be conducted at a police station over a recorded telephone line so that the substance of the hearing may be preserved.
The preferred practice in conducting emergency c. 258E harassment prevention order hearings by telephone is for the judge to speak directly to the plaintiff. By speaking directly to the plaintiff, the judge is in the best position to determine the appropriate terms and scope of the order, including the appropriate court to which to return the order. Direct contact with the plaintiff may also assist the judge in assessing the credibility of the plaintiff and in determining other actions that should be taken immediately, such as a report to the Department of Children and Families under G.L. c. 119, § 51A.
Occasionally, direct contact with the plaintiff is not possible, due to the plaintiff’s physical condition or a language issue. Where the plaintiff is unable to communicate with the judge because of a physical disability, the judge may rely on information provided by the police, an eyewitness, and any other reliable sources. Where the plaintiff is unable to communicate with the judge due to a language issue, the judge may rely on information provided by the police or may utilize the assistance of a police officer or the LanguageLine for translation of the plaintiff’s statements. See Guideline 1:06 Limited and Non-English-Speaking Parties in c. 258E Actions.
In appropriate circumstances, the judge may ask the police officer to provide other assistance to the plaintiff, such as reviewing the terms of the order with the plaintiff and making sure that the plaintiff has directions to the return court.
The on-call judge should always consider carefully which court is the most appropriate forum for hearing the complaint on the next business day. The judge should also advise the police where the order is to be returned so that both the plaintiff and the defendant are properly advised where to go for the hearing.
It is critical that the emergency order properly memorialize the terms of the order as well as the specific details about the date, time, and location of the next hearing. If the defendant is served with an order that clearly advises the defendant of the date, time, and location of the next hearing, the court, at that hearing, may conduct a hearing after notice and may issue an order for up to one year if there is no good reason for their failure to appear (e.g., defendant is incarcerated or hospitalized). See Commentary to Guideline 4:06 Transmission of Ex Parte Orders to the Police for Service on the Defendant. See also Guideline 5:05 Failure of the Defendant to Appear.
All emergency harassment prevention orders issued by the on-call judge, and any supporting documents, must be provided to the return court on the next working day after they are issued, whether or not a judge is sitting that day. This practice will ensure that the probation department will immediately enter the emergency order into the Statewide Registry of Civil Restraining Orders. General Laws c. 258E, § 6 requires the clerk to certify orders issued by the on-call judge; these orders should be docketed in the clerk’s office regardless of whether the plaintiff appears.
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| Last updated: | October 20, 2025 |
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