B.M. v. J.M. (and a consolidated case 1). (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant (father) appeals from two District Court abuse prevention orders obtained by the plaintiff (mother) on behalf of the divorced couple's two minor children. On appeal, the father contends that the judge made no independent findings and instead impermissibly relied on findings of the judge who presided over the prior ex parte proceeding. We vacate the orders of February 26, 2025, extending the abuse prevention orders, and remand the cases for further proceedings.

Background. On February 12, 2025, the mother applied for and obtained from the District Court an ex parte abuse prevention order on behalf of her three year old child, and another one on behalf of her five year old child, alleging that the father was sexually abusing the children. In the complaints, the mother disclosed that the parties had been involved in child custody proceedings in the Probate and Family Court.² The judge issued orders requiring the father, among other things, to have no contact with the children, and scheduled the matter for another hearing to take place after the father had received notice.

On February 26, 2025, the parties appeared for the hearing after notice. After ensuring that the father had had an opportunity to review the affidavits in support of the complaints, the judge had the mother affirm the truth of the affidavits in place of giving direct testimony. The father's counsel then cross-examined the mother and elicited that allegations of sexual abuse featured in the parties’ divorce proceedings, yet the divorce judge awarded them shared custody. The father presented the testimony of a department investigator who confirmed that there had been fifteen unsupported allegations of sexual abuse of the children, and that another investigation was ongoing. The father submitted a copy of a 51A report. See G. L. c. 119, § 51A. The judge then stepped off the bench to review the report and stated that he was going to report back to the parties.

When the judge returned to the bench, he stated:

“I have reviewed the exhibits, as provided. I find that there was a previous order that was issued. [The department] does have an active investigation. Inasmuch as Judge finding [the mother] credible, previously, and issuing the order, I do find that it meets the standard, at this time, and I am going to issue this order. I'm going to extend this order out until August 27, 2025.”3

Discussion. Whether seeking the issuance of an initial abuse protection order or a later extension of that order, the plaintiff bears the burden of establishing facts justifying the order's issuance and continuance. Iamele v. Asselin, 444 Mass. 734, 736 (2005). See Frizado v. Frizado, 420 Mass. 592, 596 (1995). The plaintiff must meet that burden by a preponderance of the evidence. Id. at 597. At a hearing after notice, “[n]o presumption arises from the fact that a prior order has issued.” Banna v. Banna, 78 Mass. App. Ct. 34, 36 (2010). “An ex parte order is entitled to no weight and the issue must be relitigated anew ․” Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 258 n.11 (2022). “We accord the credibility determinations of the judge who heard the testimony of the parties ․ [and] observed their demeanor ․ the utmost deference” [quotations omitted]). Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006).

Here, however, it appears that the judge who heard the testimony and observed the parties relied on the ex parte judge's determination of the mother's credibility “previously,” and that judge's decision to issue the ex parte orders, to find that “it” met the standards for a hearing after notice. Indeed, the judge's first statement upon resuming the bench was a “finding” that “there was a previous order that was issued.” Although we ordinarily presume that trial judges know and correctly apply the law, the judge's oral findings on the record raise a concern that the correct standard was not applied. See Commonwealth v. McGrath, 497 Mass. 369, 374-375 (2026) (absent contrary indication, trial judges presumed to know and correctly apply law).

Accordingly, the orders of February 26, 2025, extending the abuse prevention orders, are vacated. The cases are remanded to the District Court, where the judge will have thirty days after the issuance of the rescript to enter specific written findings supporting the orders against the father. If findings are not made in that time, notifications and directions shall enter, conformably with G. L. c. 209A, § 7, third par., for the destruction of all records of the vacated orders. We deny the mother's request for appellate attorney's fees.

So ordered.

FOOTNOTES

2.   The parties’ divorce had been finalized days earlier, after three years of proceedings, which included issues of child custody and involvement of the Department of Children and Families (department).

3.   After this extension, the orders were amended by the Probate and Family Court to allow the father supervised visitation with the children.