Massachusetts Guidelines for Judicial Practice Abuse Prevention Proceedings Guideline 6:07

Where the parties seek abuse prevention orders against one another, the court has a responsibility to decide who is in danger from whom, who needs the court's protection and whether one party is the primary aggressor. A mutual abuse prevention order should only be issued in the rare circumstance when both parties are suffering from abuse, having each proved that circumstance by a preponderance of the evidence, and both are genuinely in need of protection from such abuse. “A court may issue a mutual restraining order or a mutual no contact order pursuant to any abuse prevention action only if the court has made specific written findings of fact.” G.L. c. 209A, § 3. These findings must precede or accompany the order. Nelson N. v. Patsy P., 98 Mass. App. Ct. 78, 81 (2020). The purpose is to ensure close scrutiny of “the often conflicting evidence presented in order to determine if a mutual order is warranted.” Id. The findings of fact should provide the basis for the court's conclusion that each party has proved, by a preponderance of the evidence, that he or she is suffering abuse by the other party and that the resulting abuse prevention orders are warranted and should indicate the critical facts found by the judge “regarding key disputed issues, typically including what “abuse” the defendant has committed, and why an order to prevent further abuse by that defendant is warranted.Id. “The court shall then provide a detailed order, sufficiently specific to apprise any law officer as to which party has violated the order, if the parties are in or appear to be in violation of the order.” G.L. c. 209A, § 3. All mutual orders must include a reference to the other order by court department, division, and case number.

Consecutive orders, where the same parties reverse roles are, also, mutual orders.Sommi v. Ayer, 51 Mass. App. Ct. 207, 209-210 (2001). If the second order is sought in the same court that issued the first, the court has three options, depending upon the court's findings: 1) if the standard for issuance of an order has not been met, decline to issue an order; 2) if the court finds a substantial likelihood of immediate danger and the hearing after notice on the first order has not yet been held, issue the order and either make it returnable on the date scheduled for the hearing in the first case or on a different date; or, 3) if the standard for an ex parte hearing is not met, defer to the hearing on the second order until a hearing with all parties is held.SeeGuideline 6:04 Modification of Orders; Terminating Orders. If, at the hearing, relief to both parties is warranted, mutual orders may be issued.

If the court in the second action is not the court that issued the first order, it has the following three options depending upon its findings: 1) if it finds that the standard for issuance of an order has not been met, decline to issue an order; 2) if it finds a substantial likelihood of immediate danger and the hearing after notice in the first court has not yet been held, the second court may issue the order and ask the departmental Chief Justice (or, if the courts are in different departments, the Chief Justice of the Trial Court) to transfer the second matter to the first court on the date scheduled for the hearing; or, 3) the second court may schedule the complaint for a hearing after notice in the second court.

Mutual abuse prevention orders should be issued sparingly.See Uttaro v. Uttaro, 54 Mass. App. Ct. 871, 875 (2002). The law requires that the court issue case specific written findings before issuing mutual abuse prevention orders. Nelson N. v. Patsy P., 98 Mass. App. Ct. 78, 81 (2020). The purpose of requiring specific written findings to support the issuance of mutual orders is “to ensure that the judge will carefully consider the evidence presented to determine who is the real victim and aggressor in an abusive relationship and if a mutual order is warranted.” Id. quoting Sommi v. Ayer, 51 Mass. App. Ct. 207, 211 (2001). These findings should explain the basis for concluding that each party has abused the other and that the protective terms imposed against each party are warranted.Sommi, 51 Mass. App. Ct. at 211. (“In issuing a mutual order, a judge is required to set forth the bases for concluding that mutual abuse occurred and, thus, a reciprocal order is warranted. The judge's failure to do so․․․ requires the order to be vacated.”).

If such an order is issued, the police must have clear instructions about how it is to be enforced. For example, an order requiring party A to stay away from party B's address and party B to stay away from party A's address can be enforced. However, an order which orders both party A and party B to stay fifty yards away from one another cannot be enforced readily, because the responding officer often will not be able to say who approached whom.

The statute clearly appears to require that a single mutual order be issued, rather than separate orders in favor of each party. However, since this is not possible as a practical matter (each party is a plaintiff and each party is a defendant), this Guideline recommends cross-referencing each order in the other.

Consecutive orders from different courts involving the same parties in reverse roles are considered “mutual orders.” The second court, considering a complaint filed by a party who is already the subject of a previous order, cannot amend or supersede the first order. The second court's order, if any, will run only in favor of the new plaintiff. Finally, the second court cannot change the first order.

Instead, if the second court has reason to believe that an order may be pending in another court against the plaintiff, in favor of the person now listed as defendant, the second judge should question the plaintiff about this and, if necessary, check the plaintiff's name on the Statewide Registry of Civil Restraining Orders. If the new plaintiff is the defendant listed in an existing order and does not appear to be in immediate danger, the court may suggest that the new plaintiff return to the court that issued that order and seek relief there by means of a motion to modify the existing order or issue a separate order in the new plaintiff's favor. If the plaintiff in the second action declines to do so, the judge must rule on the second complaint.

If the plaintiff in the second action presents evidence that causes the judge to believe that there is a substantial likelihood of immediate danger of abuse and the hearing after notice has not yet been heard on the original order brought by the other party, the judge may issue an order ex parte and then, after receiving approval from the departmental Chief Justice (or, if the courts are in different departments, the Chief Justice of the Trial Court) to transfer the case, make it returnable to the first court for a joint hearing. The judge in the second court may obtain and consider the complaint, affidavit and, if necessary, the recording of the proceedings in the first court so as to assist in issuing the required written findings.

In those cases in which two different courts within the same department have venue over the different plaintiffs, the Chief Justice of that department may transfer the second case to the original court so that one judge can hear cases for both courts and decide which, if any, orders should issue. If two courts in different court departments have venue over the different plaintiffs, a request may be made to the Chief Justice of the Trial Court to transfer one of the cases to the other court so that one judge can hear both cases. In any of these instances, if the judge hearing both matters, after hearing, decides to issue mutual orders, that judge should be in a position to make the written findings required by the statute.

If the court hearing the second case, for whatever reason, does not refer the plaintiff back to the original court, any resulting order in favor of that new plaintiff cannot be inconsistent with the terms of the first order. The second order should also, in specific terms, acknowledge the existence of the first and specifically provide guidance on any enforcement issues that may arise.

If the plaintiff in the second case is seeking relief in the same court that issued the first order, the judge should consider whether the plaintiff is actually seeking to file a motion for modification in that pending case, or if the relief, if ordered, involves protection of that party, and therefore must result in a mutual abuse prevention order.