Legal Information: Massachusetts

Custody

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Updated: 
March 29, 2019

Can a parent who committed violence get 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 judge 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.1

For custody purposes, “abuse” means:

  • attempting to cause bodily injury;
  • causing bodily injury; or
  • placing someone in reasonable fear of immediate (imminent) bodily injury.

“Serious incident of abuse” means:

  • attempting to cause serious bodily injury;
  • causing serious bodily injury;
  • placing someone in reasonable fear of immediate (imminent) serious bodily injury; or
  • causing someone to sexual relations against their will due to force, threat, or duress.1

Note: Having a 209A abuse prevention order cannot alone be used as proof that the required level of abuse occurred.1

If the child was conceived by rape and the parent was convicted of the rape, this will be enough to prove that there was a serious incident of abuse.2

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.3

1 M.G.L. 208 §§ 31A; 209C § 10(e)
2 M.G.L. 209C § 10(e)
3 M.G.L. 208 §§ 31A; 31; 209C § 10(e)