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ALM GL ch. 209A, § 4 Page 38 CASE NOTES Emergency hearing regarding transfer of custody of child in need of care and protection may be held ex parte. Care & Protection of Robert (1990) 408 Mass 52, 556 NE2d 993, 1990 Mass LEXIS 325. After District Court judge vacated temporary protective order against husband, judge lacked statutory authority to order expungement of husband's name from statewide domestic violence record keeping system created by St. 1992 ch. 188, § 7. Vaccaro v. Vaccaro (1997) 425 Mass 153, 680 NE2d 55, 1997 Mass LEXIS 121. Failure to serve defendant with copy of extended abuse prevention order did not deprive District Court of subject matter jurisdiction and was not required before defendant could be convicted of violating order, where defendant was served with temporary order at his last and usual place of abode and that order warned that if he failed to appear extended order may remain in effect. Commonwealth v. Delaney (1997) 425 Mass 587, 682 NE2d 611, 1997 Mass LEXIS 187, cert den (1998) 522 US 1058, 139 L Ed 2d 655, 118 S Ct 714, 1998 US LEXIS 216. Testimony before District Court was not sufficient to warrant extension of 209A order entered ex parte 10 days earlier, where complainant's testimony that she suffered emotionally and experienced aggravation of ulcer condition as result of receiving defendant's notices of lawsuit and court proceedings did not constitute threat of serious physical harm or "abuse;" petition for relief under ALM GL c 211, § 3 should have been allowed. Larkin v. Ayer Div. of the Dist. Court Dep't (1997) 425 Mass 1020, 681 NE2d 817, 1997 Mass LEXIS 174. Where incarcerated defendant received actual notice of scheduled hearing on extension of temporary protective order which had been granted ex parte, knew order could be extended, and never expressed desire to exercise his right to be heard, defendant's due process rights were not violated and his conviction for violation of protective order would be affirmed. Commonwealth v. Henderson (2001) 434 Mass 155, 747 NE2d 659, 2001 Mass LEXIS 213. Trial court erred in denying a boy's motion to vacate an order for protection from abuse entered pursuant to ALM GL c 209A, § 4; trial court erred in finding that the boy and a girl he allegedly sexually assaulted had engaged in a substantive dating relationship as defined by ALM GL c 209A, § 3, and ALM GL c 209A, § 1(e), as the trial court did not apply the four factors provided by ALM GL c 209A, § 1(e)(1)-(4) in determining whether a substantive dating relationship existed, and the trial court erred in refusing to allow the boy to present evidence and cross examine witnesses at the hearing in question. C.O. v. M.M. (2004) 442 Mass 648, 815 NE2d 582, 2004 Mass LEXIS 665. District Judge had the inherent authority to expunge a record of a ALM GL c 209A civil abuse protection order from the statewide domestic violence registry system in the rare and limited circumstance that: (1) the judge found through clear and convincing evidence that the order was obtained through fraud on the court; (2) neither vacation of the order, nor sealing of the record was sufficient to protect the integrity of the courts, did not send an appropriate message to the public, and left a record of the order in the system; and (2) the potential harm to the courts and to the victim of the order outweighed the governmental interest in maintaining and disseminating the fraudulently obtained order, because it contained absolutely no informational purpose; however, because the action was initiated by a private plaintiff, ALM GL c 261, § 14 did not authorize the District Court judge to levy costs against the Commissioner due to the Commissioner's failure to attend a hearing on a motion to destroy all copies of the ALM GL c 209A order. Comm'r of Prob. v. Adams (2006) 65 Mass App 725, 843 NE2d 1101, 2006 Mass App LEXIS 262. Plaintiff could not meet his burden, in action under anti-SLAPP law ( ALM GL c 231, § 59H) to show that defendant's exercise of her right to petition court for extended orders for protection from abuse was devoid of any reasonable factual support or arguable basis in law where plaintiff had opportunity to be heard before any temporary order was extended under ALM GL c 209A, even though he was ultimately acquitted after jury trial for allegedly violating such order. Franco v. Mudford (2002) 2002 Mass App Div 63, 2002 Mass App Div LEXIS 26.
Page 39 8 of 15 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright © 2013 Matthew Bender & Company, Inc., a member of the LexisNexis Group All rights reserved *** Current through Acts 464 of the 2012 Legislative Session *** PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS TITLE III DOMESTIC RELATIONS Chapter 209A Abuse Prevention GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY ALM GL ch. 209A, § 5 (2012) § 5. Granting of Relief When Courts Closed; Notice; Next-Day Certification. [Effective until July 1, 2012.] When the court is closed for business or the plaintiff is unable to appear in court because of severe hardship due to the plaintiff's physical condition, any justice of the superior, probate and family, district or Boston municipal court departments may grant relief to the plaintiff as provided under section four if the plaintiff demonstrates a substantial likelihood of immediate danger of abuse. In the discretion of the justice, such relief may be granted and communicated by telephone to an officer or employee of an appropriate law enforcement agency, who shall record such order on a form of order promulgated for such use by the chief administrative justice and shall deliver a copy of such order on the next court day to the clerk-magistrate of the court having venue and jurisdiction over the matter. If relief has been granted without the filing of a complaint pursuant to this section of this chapter, then the plaintiff shall appear in court on the next available business day to file said complaint. If the plaintiff in such a case is unable to appear in court without severe hardship due to the plaintiff's physical condition, then a representative may appear in court on the plaintiff's behalf and file the requisite complaint with an affidavit setting forth the circumstances preventing the plaintiff from appearing personally. Notice to the plaintiff and defendant and an opportunity for the defendant to be heard shall be given as provided in said section four. [Effective July 1, 2012.] When the court is closed for business or the plaintiff is unable to appear in court because of severe hardship due to the plaintiff's physical condition, any justice of the superior, probate and family, district or Boston municipal court departments may grant relief to the plaintiff as provided under section four if the plaintiff demonstrates a substantial likelihood of immediate danger of abuse. In the discretion of the justice, such relief may be granted and communicated by telephone to an officer or employee of an appropriate law enforcement agency, who shall record such order on a form of order promulgated for such use by the chief justice of the trial court and shall deliver a copy of such order on the next court day to the clerk-magistrate of the court having venue and jurisdiction over the matter. If relief has been granted without the filing of a complaint pursuant to this section of this chapter, then the plaintiff shall appear in court on the next available business day to file said complaint. If the plaintiff in such a case is unable to appear in court
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