En Español
National Domestic Violence Hotline: 1-800-799-SAFE (7233) or (TTY) 1-800-787-3224

Know the Laws: Massachusetts

UPDATED November 28, 2016

View All

State-specific information about custody in Massachusetts.

Who can get custody and visitation

back to topWho can seek custody?

Generally, both parents are entitled to seek sole or shared custody from the court.  However, if the parents are unmarried, the father must first establish paternity (legal fatherhood) before seeking legal custody of his child.*  Paternity can be established by a judge if one parent files a paternity petition in court, or outside of court if both parents sign and file what is called a “voluntary acknowledgement form.”  You can read more about paternity and how to establish it on MassLegalHelp.org.

Grandparents may also be able to seek custody of their grandchildren in certain circumstances.  See I am the child’s grandparent. Can I get custody or visitation of the child?

* M.G.L.A. 209C §§ 10(b); 11

Did you find this information helpful?

back to topCan a parent who committed violence get custody or visitation?

Custody
When making a decision about temporary or permanent custody, the judge will take into account evidence of past or present abuse committed by one parent toward the other parent or toward the child.  If the court finds that there is a pattern of abuse or that a serious incident of abuse has occurred, the court will assume it is not in the best interest of the child to be placed in the custody of the abusive parent, unless the abusive parent can show otherwise.* 

For custody purposes, “abuse” means attempting to cause or causing bodily injury or placing another in reasonable fear of imminent bodily injury.
“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.  Note: Having a 209A abuse prevention order cannot alone be used as proof that the required level of abuse occurred.*  If the child was conceived during the commission of a rape and the parent was convicted of said rape, this will be enough to prove that there was a serious incident of abuse.**

If temporary or permanent custody is given to the abusive parent, either in a custody action or as part of a 209A abuse prevention order, the court has to explain in writing why the custody order is in the best interest of the child, even though the other parent was abusive. This written explanation must be done within 90 days.***

Visitation
If visitation is granted to the abusive parent, the judge can take the following steps to try to keep you and the child safe:

  • Order that the visitation be supervised by an appropriate third party, visitation center or agency;
  • Order that the exchange of the child take place in a safe setting, or in front of an appropriate third party (meaning another adult will be there);
  • Prohibit (not allow) overnight visits;
  • Order the abusive parent to not use alcohol or drugs during the visit, and for 24 hours before the visit takes place;
  • Require the abusive parent to attend a batterer’s treatment program;
  • Require the abusive parent to post a bond (money) to ensure that the child will be returned to you;
  • Order an investigation or appointment of a guardian ad litem or attorney for the child; and/or
  • Order anything else that the judge thinks is necessary to provide for your safety and for the safety and well-being of the child.*
* M.G.L.A. 208 §§ 31A; 209C § 10(e)
** M.G.L.A. 209C § 10(e)
*** M.G.L.A. 208 §§ 31A; 31; 209C § 10(e)

Did you find this information helpful?

back to topI am the child’s grandparent. Can I get custody or visitation of the child?

It depends on various factors.  We suggest talking to an attorney for advice on your situation.  Go to our MA Finding a Lawyer for free and paid legal referrals.

Custody
Grandparents may seek custody (temporary or permanent) of their grandchild if they believe that the child is at risk living with their parents. In order to gain custody, the grandparents need to:

  • get permission from the parents to take custody; OR
  • prove to a court that the parents are not fit to care for their child* (which can be difficult to do).
Visitation
If the parents are both alive, married, and living together, and refuse to let the grandparents visit with the child, the grandparents cannot ask for a visitation order from the court.  Grandparents can ask the court to order visitation only under the following circumstances:
  • The parents are divorced or separated; OR
  • The parents are unmarried and living apart; (paternity must be established if the paternal grandparents are seeking visitation); OR
  • One or both parents are dead.**
In order to get visitation from the court, the grandparents must show that not being able to visit with the child will cause the child significant harm, and in particular, will hurt the child’s health, safety, or welfare.***  The grandparents must also show that visitation would be in the child’s best interests.**

* See Page v. Page, 107 N.E.2d 21 (Mass. 1952); In re Adoption of Carlott, 884 N.E.2d 550, 2008 WL 920074 (Mass.App.Ct.)
** M.G.L.A. 119 § 39D
*** See Blixt v. Blixt, 774 N.E.2d.1052 (Mass. 2002)

Did you find this information helpful?

back to topI am the child’s aunt, uncle, step-parent or other relative. Can I get visitation?

Maybe.  If you have lived with the child, participated in the child’s life, and taken care of the child in a significant way, the court may decide that you are what is called a “de facto parent” and give you visitation rights if it is in the best interests of the child.*

A “de facto parent” can also be a person who has no blood relationship with the child, such as the same-sex partner of the child’s mother.  A court may decide it is in the best interests of the child to continue a relationship with this de facto parent, even if the legal parent disagrees.**

* See Youmans v. Ramos, 711 N.E.2d 165 (Mass. 1999)
** See E.N.O. v. L.M.M., 711 N.E.2d 886 (Mass. 1999)

Did you find this information helpful?

back to topCan I get temporary custody if I have a 209A abuse prevention order against the other parent?

Yes.   As part of your 209A order, the judge can award you temporary custody of your child.* 

If you already have a 209A order in place and it does not grant you temporary custody, you can likely file to have your order modified (changed) to include this provision.  There will most likely be another hearing, and the abuser will have the opportunity to appear in court to argue against your request.  However, instead of filing to modify the order to include a temporary custody provision (which will expire when the 209A order expires), you may want to file a separate petition for custody.  We strongly suggest that you consult with a lawyer first to help decide what is best for you. Go to MA Finding a Lawyer for legal referrals.   For more information on how 209A orders, please see our MA Abuse Prevention Orders page.

* M.G.L.A. 209A § 3(d)

Did you find this information helpful?

back to top