How Massachusetts Family Court's Are SUPPOSED Handle Domestic Abuse

By: Community Legal Services and Counseling Center

How Do Probate Courts Handle Custody of Children When There Has Been Domestic Violence?

In making custody decisions, Probate Courts must consider the effects of domestic violence.

Chapter 179 of the Acts of 1998 tells Probate Courts how to consider the effects of domestic violence in custody cases.  In issuing any temporary or permanent custody order, the Probate Court must consider past or present abuse toward a parent or child as a factor that is against the child's best interests.

The law applies to abuse involving certain acts between a parent and the other parent or between a parent and child.

Abuse is defined as
• attempting to cause or causing bodily injury or
• placing another in reasonable fear of imminent bodily injury.

The law tells Probate Courts how to make custody decisions where there has been a pattern of abuse or a serious incident of abuse. A "serious incident of abuse" means
• attempting to cause or causing serious bodily injury;• placing another in reasonable fear of imminent serious bodily injury; or
• causing another to engage involuntarily in sexual relations by force, threat or duress.

"Bodily injury" is defined as substantial impairment of your physical condition, including, among other things, fractures, burns, internal injuries, or repeated harm to any bodily function or organ, including the skin.

If the Probate Court finds or decides that most of the evidence shows that a pattern or serious incident of abuse has occurred, then there is a rebuttable presumption that it is not in the best interests of the child to be placed in sole legal or physical custody, shared legal custody, or shared physical custody with the abusive parent.

This "presumption" means that if the court decides that a pattern or serious incident of abuse has occurred, then the court must assume that it is not in the best interests of the child to be placed in the custody of the abusive parent. "Rebuttable" means the "abusive parent" has the right to try to rebut or cancel the presumption. The "abusive parent" can rebut the presumption and get custody only if he/she can prove that most of the evidence shows that an award of custody to him/ her is in the best interests of the child, even though he/she has perpetrated a patterns or serious incident of abuse.

The term an abusive parent means a parent who has committed a pattern of abuse or a serious incident of abuse to the other parent or the child.

Under this law the issuance of a restraining order under chapter 209A does not by itself constitute a pattern of serious incident of abuse.

The law also says that if the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, then the court must, within 90 days, issue written findings about the effects of the abuse on the child and demonstrate that the custody order is in thechild's best interests and that it provides for the safety and well-being of the child.

If you think that this law applies to you, it is important to speak to a lawyer.

Even if the provisions of Chapter 179 do not apply to your case, the 1996 Custody of Vaughn decision of Massachusetts' highest court, the Supreme Judicial Court (SJC), may provide important protections for your child.

In Custody of Vaughn, the SJC said that in custody and visitation cases involving domestic violence, Probate Court judges must make detailed written decisions about domestic violence and its effect on the children and on the perpetrator's parenting ability. The SJC also said that witnessing domestic violence has a profound impact on children and that judges must consider the risks to children when awarding custody to a parent who has committed acts of violence toward the other parent.

How Does the Probate Court Handle Visitation When There Has Been Domestic Violence?

The 1998 custody law requires that if ordering visitation for the abusive parent, the Probate Court must provide for the safety and well-being of the child and the safety of the abused parent.

Under the law court may consider:
1. ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;
2. ordering visitation supervised by an appropriate third party, visitation center, or agency;
3. ordering the abusive parent to attend and complete to
the satisfaction of the court, a certified batterer's treatment program as a condition of visitation;
4. ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances
during the visitation and for 24 hours preceding visitation;
5. ordering the abusive parent to pay the costs of supervised visitation;
6. prohibiting overnight visitation;
7. requiring a bond from the abusive parent for the return and safety of the child;
8. ordering an investigation or appointment of a guardian ad litem or attorney for the child;
9. imposing any other condition that is deemed necessary to provide for the safety and well-being of the child, and the safety of the abused parent.

Probate Courts can also order that there be no visitation.