Massachusetts Guidelines for Judicial Practice Abuse 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 abuse upon a finding, by a preponderance of the evidence, that the plaintiff is suffering from abuse. These orders may include, but are not limited to, the following:

Unlike ex parte orders, which require the court to find a substantial likelihood of immediate danger of abuse, orders after notice only require that the court find that the plaintiff is suffering from abuse. Both findings are made using the preponderance of the evidence standard. “Suffering from abuse” is determined by the definition of abuse as set forth in G.L. c. 209A, § 1 as follows: (1) attempting to cause or causing physical harm; (2) placing another in fear of imminent serious physical harm; or (3) causing another to engage involuntarily in sexual relations by force, threat, or duress.

Upon such a finding, G.L. c. 209A, § 3 lists the orders that are expressly authorized by law, and G.L. c. 209A, § 11 expressly authorizes the issuance of orders regarding domesticated animals. The court, however, is not limited to the options listed in c. 209A, as a judge is authorized to order relief to the plaintiff “including, but not limited to” the relief listed in c. 209A.G.L. c. 209A, § 3. See Commentary to Guideline 4:01 Content of Ex Parte Orders (“[w]hen justified by the facts, the court has authority to order a defendant to stay away from a particular school or job site, even if the defendant attends the school or works at the same job”); see also Commonwealth v. Habenstreit, 57 Mass. App. Ct. 785 (2003), rev. denied, Commonwealth v. Habenstreit, 439 Mass. 1106 (2003).

Judges should be aware that such handwritten orders may not appear in the electronic database used by the police when enforcing such 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. Similarly, the police will not have access to other court orders such as Probate and Family Court orders. Therefore, ordering compliance with such orders through an abuse prevention order will be difficult for the police to interpret and enforce.See Caplan v. Donovan, 450 Mass. 463, 463-464 (2008), cert. denied, Donovan v. Caplan, 553 U.S. 1018 (2008).

Each time an order issued under c. 209A is extended or modified the judge must determine if returning the defendant's firearms or firearm identification card would present a likelihood of abuse to the plaintiff, and, if so, must indicate that determination by checking the box that continues the order of surrender.See Guideline 6:05 Orders to Surrender Guns, Ammunition, and Firearms Licenses (FID; LTC). While Massachusetts law prohibits possession of firearms, rifles, shotguns, ammunition, firearm identification cards, and licenses to carry firearms by individuals subject to c. 209A orders, enforcement of this provision in another state may be dependent upon whether the order contains such a finding. If the defendant did not appear at the two-party hearing and the defendant may be a non-resident, it is advised that in addition to ordering surrender pursuant to G.L. c. 209A, § 3C, the court should also prohibit the defendant from having a gun 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 an abuse 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).SeeG.L. c. 209A, § 3D. 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.

Ordering a defendant to stay away from and to have no contact with their minor child(ren) is tantamount to extinguishing parental rights, at least for the duration of the order. Before issuing such an order, the judge should assess the danger of abuse to the child(ren) independently from the danger of abuse to the plaintiff. It is important that the plaintiff provide the court with a reason for ordering the defendant to have no contact with the defendant's minor child(ren). “If there is to be a G.L. c. 209A order that a defendant stay from and have no contact with [their] minor children, there must be independent support for the order.” Smith v. Joyce, 421 Mass. 520, 523 (1995). However, a defendant who abuses their child(ren)'s other parent in the child(ren)'s presence may be placing the child(ren) in fear of imminent serious physical harm and/or by causing emotional and psychological harm to the child(ren).Schecter v. Schechter, 88 Mass. App. Ct. 239, 251-52 (2015). See Guideline 2:04 Plaintiff's Affidavit.

In certain cases (e.g., where it is not obvious from the affidavit the basis for issuing an order inconsistent with the Probate and Family Court), the judge should make written findings to explain the reasons for the no contact order.See, e.g., Care and Protection of Lillith, 61 Mass. App. Ct. 132, 139-142 (2004), citing Custody of Vaughn, 422 Mass. 590, 599 (1996) (requirement of findings in custody cases when there has been evidence of domestic violence). Such findings will offer guidance to the Probate and Family Court in any later proceeding relating to custody of or parenting time with the minor child(ren).Cf. Smith v. Joyce, 421 Mass. 520, 523 (1995). Appropriate reasons may include, but are not limited to, a finding that the child(ren) has/have been abused; that the child(ren) has/have witnessed the defendant's abuse of the plaintiff and are therefore afraid of the defendant, and would be harmed by seeing the defendant; or, that no parenting time can be arranged with child(ren) in the plaintiff's custody without endangering the plaintiff.

General Laws c. 209A, § 3(e) requires that all orders of support “issued, reviewed or modified” under the statute must also conform to and be enforced under the provisions of G.L. c. 119A, § 12 (pertaining to child support enforcement).See Guideline 6:05B Support Orders.