Background
This case arose from a dispute between B.M. and N.S. involving reciprocal abuse prevention orders under G.L. c. 209A. N.S. first obtained a 209A order against B.M. from the Boston Municipal Court. Less than three weeks later, B.M. filed his own petition and obtained an ex parte 209A order against N.S. in the Probate and Family Court. The resulting situation created mutual restraining orders — each party simultaneously subject to an order obtained by the other.
At a two-party hearing on January 2, 2025, a Probate and Family Court judge extended the ex parte order against N.S., setting it to expire on the same date as N.S.’s existing order against B.M., approximately eleven months later. B.M.’s affidavit alleged that N.S. had been threatening him through texts, phone calls, and social media, and that she continued to contact him after the existing restraining order was in place. B.M. presented printed text messages and digital evidence at the hearing, and also played a video recording in Spanish that he described as threatening.
N.S. appealed, arguing that the judge committed multiple legal errors and abused her discretion. During the hearing, the judge had cut off N.S.’s testimony when she attempted to raise safety concerns about B.M., including allegations of gang involvement and gun charges, telling N.S. that the hearing was only about the restraining order between the two parties and not about the child.
The Court’s Holding
The Appeals Court vacated the abuse prevention extension order for three independent reasons. First, and most critically, the court held that the judge failed to comply with the statutory requirement under G.L. c. 209A, § 3, that mutual 209A orders may issue “only if the court has made specific written findings of fact.” Citing Nelson N. v. Patsy P., 98 Mass. App. Ct. 78 (2020) and Sommi v. Ayer, 51 Mass. App. Ct. 207 (2001), the court emphasized that written findings must include case-specific determinations regarding what “abuse” the defendant committed and why a protective order is warranted. The judge in this case made no findings of fact at all, which alone required vacatur.
Second, the court found that the judge failed to consider evidence necessary to determine whether a mutual order was appropriate. The purpose of the written findings requirement is to ensure the judge carefully evaluates who is the real victim and aggressor in an abusive relationship. Here, the judge heard no evidence about the circumstances that led to N.S.’s prior 209A order against B.M., nor did she consider whether this presented the “rare circumstance when both parties are suffering from abuse.” The court noted that the judge actively cut off N.S.’s testimony when she attempted to raise these issues.
Third, the court concluded that the record contained insufficient evidence to support issuance of even a nonmutual 209A order. Although B.M. claimed to fear for his safety, the judge failed to read any of the printed or digital evidence into the record, admit it, or preserve it in any way for appellate review. Consequently, the record contained no evidence of any threat, let alone a threat of imminent serious physical harm as required by the statute. The court remanded the case with instructions to enter a written order notifying law enforcement that the order had been vacated and directing them to destroy all records of it.
Key Takeaways
- Written findings are mandatory for mutual 209A orders. When a court issues a reciprocal abuse prevention order — whether from the same court or different courts — G.L. c. 209A, § 3 requires specific written findings of fact. Failure to make such findings is independently sufficient grounds for vacatur.
- Judges must evaluate the full picture in mutual order situations. Before issuing a mutual restraining order, the court must take evidence to determine who is the real victim and aggressor, and whether the case truly presents the rare circumstance where both parties are suffering from abuse.
- Digital evidence must be preserved in the record. Under Mass. G. Evid. § 1119(c) (2025), judges must make reasonable efforts to ensure digital evidence is preserved for appellate review. Evidence that is only viewed but never admitted or made part of the record cannot support a court’s findings.
- A party’s contact with the subject of their own restraining order does not automatically establish grounds for a reciprocal order. The court noted that a successful plaintiff in a restraining order case contacting the person restrained from contacting her is not, standing alone, a basis for issuing a separate restraining order under the statute.
Why It Matters
This decision reinforces critical procedural safeguards in the mutual abuse prevention order context. The requirement of written findings exists to prevent the dangerous scenario where a true victim of domestic violence ends up subject to a retaliatory restraining order. As the court’s citation to the Guidelines for Judicial Practice makes clear, mutual orders should be reserved for the “rare circumstance” where both parties are genuinely suffering from abuse. By vacating this order, the Appeals Court signals that trial judges must rigorously follow statutory procedures and cannot simply issue reciprocal orders without carefully evaluating the evidence and documenting their reasoning.
The decision also highlights the growing importance of properly handling digital evidence in court proceedings. In an era where much of the relevant evidence in harassment and abuse cases consists of text messages, social media posts, and digital recordings, courts must develop procedures to ensure this evidence is properly admitted and preserved. A judge’s informal review of a party’s phone screen, without any effort to make the evidence part of the record, is insufficient to support judicial findings — particularly in cases involving protective orders that carry significant consequences for the parties involved.