How Domestic Violence Affects Child Custody in Massachusetts

Domestic violence victims make over 20,000 calls to Massachusetts police each year. The Massachusetts Supreme Court has noted that there are significant psychological problems in children who witness domestic violence. Because of this, Massachusetts courts will consider each parent's history of abuse before deciding child custody.

This article explains how Massachusetts law defines domestic violence and how it affects custody decisions. If you have additional questions after reading this article, you should consult a local family law attorney for help.

Child Custody in Massachusetts

In custody cases, Massachusetts courts will decide "legal custody," which refers to how parents will make major decisions regarding their child's welfare in areas of education, medical care, and religion, and "physical custody," referring to the child's legal residence, visitation with each parent, and how parents will make day-to-day decisions for the child.

Judges won't automatically prefer one parent over the other, but instead determine custody based on what's in the child's best interests. Courts may consider any of the following factors:

• the child's relationship with each parent
• the child's residence over the past six months
• each parent's physical, emotional, and mental health
• the child's health and needs
• the child's relationship with siblings and their residence
• the child's preference, if he or she is old enough to have a meaningful opinion
• each parent's ability to act in the child's best interest
• whether the child's present or past living conditions negatively impacted his or her physical, mental, moral, or emotional health
• either parent's abuse of alcohol or other drugs
• each parent's ability to cooperate in childcare matters
• whether either parent has deserted the child in the past, and
• either parent's past or present abuse toward a parent or child.

What is Domestic Violence?

Massachusetts law defines domestic violence or "abuse" as any of the following acts between parents, a parent and child, or past or present dating partners:

• attempting to cause or causing bodily injury
• placing another in fear of imminent bodily injury (threats or threatening behavior), or
• forcing sexual relations on another person.

If a parent has committed a serious incident of abuse, or has committed abuse more than one time, the court will consider that parent an "abusive parent."

What to Do When There is Domestic Violence

If someone has abused you or another household member, or you are in immediate fear for your safety, you should call 911.

If someone has abused you or another household member in the past, and you are afraid of future violence, you should obtain a "Protective Order," which is a court order meant to protect a person from abuse. In Massachusetts, a protection order is also referred to as a "restraining order," or "abuse prevention order."

A protection order may include any of the following provisions:

• order the abusive parent to refrain from abusing the other parent or child
• prohibit the abusive parent from contacting the other parent or child
• order the abusive parent to stay away from the other parent's home and workplace
• grant the abused parent custody of any children
• order the abusive parent to provide financial support to the other parent and child
• order the abusive parent to surrender any firearms to police
• order the abusive parent to attend a batterer's intervention program, and
• order any other conditions necessary to protect the abused parent or child.

To apply for a protection order, visit your county court clerk's office and ask for the forms for a restraining order. You can go to any superior, district, family, or probate court in your county. After you complete the form, you will meet with a judge. If the judge believes you are in danger, he or she will issue a temporary restraining order lasting 10 days.

The court will schedule a hearing within 10 days and both you and your abuser must attend. If the judge at the restraining order hearing believes you are still in danger, the court will issue a protection order lasting one year.

The court may extend the protection order at the end of the year if the victim needs further protection. If the abusive parent violates the protection order, he or she can be incarcerated and fined.

Casa Myrna has a 24-hour domestic violence hotline that abuse victims can call for help. MassResouces.org also has a list of domestic violence resources, and a list of Massachusetts shelters for abuse victims.

Impact of Domestic Violence on Custody Decisions

If either parent claims that the other parent is abusive, the court must determine whether a parent has committed domestic violence before awarding custody.

When a parent has been abusive, Massachusetts courts begin custody decisions with the presumption that the abusive parent shouldn't have custody or visitation with the child. For an abusive parent to receive custody or visitation, he or she must prove to the court that visitation is in the child's best interests.

When a parent has committed significant physical, psychological and/or sexual abuse, the court will usually deny custody and visitation to that parent. If the court believes that it is in the child's best interest to have contact with that parent, the court will restrict visitation to carefully controlled situations.

Visitation Restrictions

When a judge grants visitation to an abusive parent, the court must provide for the safety of the child and abused parent. The court can order any of the following protections:

• holding an emergency hearing to remove a parent's custodial or visitation rights
• ordering that child exchanges occur in a protected setting or in the presence of a third party
• ordering that a third party, visitation center, or agency supervise visitation
• ordering an abusive parent to pay supervision costs
• ordering the abusive parent to complete a batterer's treatment program
• ordering the abusive parent to abstain from consuming alcohol or controlled substances during visitation and for 24 hours before visitation
• prohibiting overnight visitation
• requiring the abusive parent to pay a bond to ensure he or she returns the child safely after visitation
• ordering an investigation into the child's living situation or appointing an attorney for the child, and
• imposing any other conditions necessary to protect the child and abused parent.

Termination of Parental Rights

In extreme cases, the court may terminate an abusive parent's parental rights. The court may consider ending the child-parent relationship in cases when:

• a parent is convicted of murder or manslaughter of the other parent
• a parent is convicted of attempting, conspiring, or soliciting to commit murder or manslaughter the other parent or a child
• a parent is convicted of any assault that causes serious bodily injury to a child, or
• a parent has committed severe or repetitive acts of physical, emotional, or sexual abuse against a child.

In any of these cases, the judge will still consider the child's best interest before ordering a termination of parental rights.

If you have other questions about domestic violence and child custody in Massachusetts, contact a local family law attorney.