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Custody and Domestic Violence

"Domestic violence" refers to many kinds of abuse committed by a member of a family, a household, or an intimate partner against another member of the family, household, or against the intimate partner. "Domestic Violence" also refers to many forms of abuse committed by one person against another in certain dating relationships or engagements.

You can seek a court order to protect you if your abuser

  • harms you physically,
  • tries to harm you physically,
  • makes you afraid that serious physical harm is going to happen to you, or
  • threatens, pressures or forces you to have sex.

This court order is to protect you from further harm. It is called an "abuse prevention order," a "restraining order," or a "209A."

"Domestic violence" is sometimes called "battering," and it also refers to abusive patterns of power and control in family, household, and intimate partner relationships.

Know Your Rights: Domestic Violence, published by the American Bar Association, says that "Domestic violence is a pattern of many behaviors directed at achieving and maintaining power and control over an intimate partner, such as physical violence, emotional abuse, isolation of the victim, economic abuse, intimidation, and coercion and threats."

Produced by Massachusetts Law Reform Institute
Last Updated December, 2007

  

This article is Chapter 6 of Where Do We Go From Here?, a self-help “know your rights” manual designed
to provide community legal education to victims and survivors of
intimate partner violence, shelter and other intimate partner violence
service provider staff, and other non-lawyers who have questions about
getting out of and staying out of abusive situations. 

"Where Do We Go From Here?" was produced by Western Massachusetts Legal Services

Produced by Jeff
Last Updated 31 January, 2006

What is custody?

There are two types of custody:

  1. Legal custody is the right to make the major decisions in your child's life. Major decisions are decisions about things like your child's religion, education, and medical treatment.
  2. Physical custody means who your child lives with.

The two types of custody can either be "joint" (shared) or "sole" (one parent only).

  • Joint or shared legal custody means both parents make the major decisions together.
  • Sole legal custody means only one parent has the right to make major decisions.
  • Joint physical custody means your child lives with each parent part of the time. Parents can split up the days of the week or the months of the year.
  • Sole physical custody means your child lives with one parent most of the time. The court usually lets the other parent visit with the child.

Do I have custody?

If you have a court order about custody, the order will say who has legal and physical custody. If you do not have a court order, who has custody depends on whether you are married to the other parent.

You and the other parent have joint legal and joint physical custody if:

  1. you are married to the other parent and
  2. there is no court order about custody.

You may both live with your child and make decisions about your child's life. As long as there is no court order about custody, it is legal for a married parent to leave home with his or her child. It is not illegal. It is not kidnapping.

You have sole custody of your child if you are the mother and:

  1. you were never married to your child's father and
  2. there is no court order about custody of your child.

You still might need to get a court order that says you have custody if you want the police to get your child back from the father.

Note

If both parents are mothers and are not married, the "biological" mother has custody unless there has been a second parent adoption or there is a court order about custody.

Produced by an AmeriCorps Project of Western Massachusetts Legal Services updated and revised Massachusetts Law Reform Institute
Last Updated October 2009

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