Legal Information: Massachusetts


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October 24, 2018

Can a parent who committed violence get custody or visitation?

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.1

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.1 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.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

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.1

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