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How does the judge decide who should get custody?

The law says that the judge’s decision must be “in the best interest of the child."

The judge will look at many things to see what is in your child's best interest:

  • Will the child have a safe place to live?
  • Will the child be well-fed and clothed?
  • Will the child be supervised enough?
  • Will the child get enough emotional support?
  • Which parent has been taking care of the child?
  • Does either parent abuse the child?
  • Does either parent abuse drugs or alcohol?
  • Does either parent expose the child to domestic violence?

When a judge decides custody, will she consider the way the other parent has abused me?

The law says that the judge has to consider the domestic violence when deciding custody. It does not matter what type of court case you have (divorce, separation, custody, etc.). The law says the judge has to decide if the other parent has repeatedly abused you or has abused you badly. If the judge decides that the other parent has abused you repeatedly or badly, then the judge cannot give the other parent any legal or physical custody unless the judge has a very good reason. The judge has to explain the reason in writing.

The judge should give you sole legal and physical custody if the other parent seriously abused you, even if the other parent never hit your child. Domestic violence hurts children in ways we cannot always see. Children suffer when they see or hear one parent abusing the other parent. Living with abuse changes the way children grow and learn. Children should not have to see or hear domestic violence. This is why courts have to look at domestic violence when they make custody decisions.

You do not have to have a 209A Protective Order to prove to the judge that the other parent abused you. The Probate and Family Court judge must decide for herself if the other parent has abused you a lot or badly. At the same time, a 209A Protective Order does not mean the judge will decide that the other parent abused you enough to give you sole custody.

Be prepared to testify to the judge about the abuse.  “Testifying” means swearing that you are telling the truth.  Be prepared to show the judge pictures, medical reports, and/or police reports. You can bring witnesses to testify about how the domestic violence has changed your child. For example, your child's therapist or day care worker might be able to testify that your child gets very upset by watching or hearing you be abused.

While the judge can only give custody to an abusive parent if she writes down very good reasons, she may still let the abusive parent visit with the child. Read more about parenting time and visitation and how to keep you and your child safe.

If I have a 209A Protective Order, can the judge still order joint custody?

If there is a 209A protective order, the parents should not have joint legal custody. Most 209A Protective Orders say that the abusive parent is not allowed to contact the other parent. This makes it hard to make decisions together.  Also, a 209A Protective Order shows that one parent has abused the other parent. It is difficult to make good decisions about your child when you must work with someone who has abused you. An abusive person can use joint legal custody as a way to control and harass you instead of planning what is best for your child.

It may also be hard to have joint physical custody if you were abused. If your child has to keep going back and forth between parents, you will have to talk to the other parent.  If you have a protective order, talking to the other parent will be complicated. Also, it may not be a good idea for a child to live part-time with a parent who has been abusive.

The law says the judge cannot order joint legal or physical custody for married parents if there is a 209A Protective Order unless she writes down why she thinks joint custody will work.So, if you have a 209A Protective Order against your husband, the court cannot make you share legal or physical custody of your child unless the judge explains in writing why joint custody is a good decision.

If the parents are unmarried the judge can only order joint custody if the parents were able to make good decisions together about their child before the case began. The parents must be able to talk to each other and plan what is best for their child.  Abuse makes it hard for parents to talk to each other. So the judge should not order joint custody for unmarried parents when there is a protective order in place, unless the judge has very good reasons for doing it.

How can I show the judge that my child will be better off with me?

If you think you should have custody of your child, you will need to show the judge:

  1. you have a good relationship with your child;
  2. you are able to meet your child’s needs; and
  3. why it would be bad for your child to live with the other parent.

Think about people who can give the court information about your relationship with your child and the way that you take care of him or her. Are there any teachers, day care workers, therapists, doctors, or other people who know how you take care of your child? Do you think they might be willing to help?  Ask them to come to court with you to testify. If they do not want to go to court, you can send them a "subpoena," which is a court order that says they have to go to court. Or you might be able to get an "affidavit" (a sworn statement in writing) from them so they do not have to go to court.

If you are asking for temporary custody at a “motion hearing,” the judge will probably accept sworn statements instead of listening to witnesses. People may need to show up in court and testify at the trial, later on in the case.

You can also ask the judge to appoint a "Guardian Ad Litem" (GAL) to help the judge decide which parent should have custody. A GAL is a social worker, lawyer, or other person who is "neutral" about the custody decision. A GAL should not have ideas about the case before they start working on the case.You can file a motion asking the judge to appoint a GAL. If the other parent asks for custody, you can respond by asking the judge to appoint a GAL.

The GAL will talk to both parents and to other people who know your child, like relatives, teachers and day care providers. The GAL may also talk with your child. The GAL reports to the judge in writing.  The GAL may say in the report where the GAL thinks your child should live.

The GAL may disagree with you. The GAL may think that the other parent should have custody. Before you ask for a GAL, you should think about how strong your case is. Judges do not always agree with the GAL, but they usually pay a lot of attention to the GAL's report.

The court will decide who should pay for the GAL. Sometimes parents split the costs. Other times one parent pays for the GAL. You can ask the court to order the state to pay the fees if neither parent is able to pay.

The judge may decide on her own to appoint a GAL, even if neither parent asks for one.If the judge appoints a GAL, you should cooperate with the GAL. Give the GAL names and phone numbers of people who know your child and people who agree with you about what is in your child'sr best interest. 

What does it mean if the judge appoints someone to look into my custody case?  

The judge may appoint someone to look into your custody case even if neither parent asks for it.  The judge will do this if the judge does not have enough information to make a decision. The judge can appoint:

  • a "Guardian Ad Litem" (GAL)
  • a social worker connected to the court, or
  • a Family Service Officer (Probation Officer) who works in the court.

If the judge appoints someone to look into your case, the person will meet with you, the other parent, and possibly with other people who know your child. The person will report back to the judge and say what he or she thinks is best for your child. Even if you did not ask the judge to appoint someone to look into your case, you should cooperate and give the person the names and phone numbers of people who can agree with you about what is best for your child.

The judge may also appoint a lawyer to represent your child. A lawyer who represents your child is different from a GAL. A lawyer that represents your child has your child as a client. Your child’s lawyer is supposed to ask the court to do what your child wants. The GAL uses the "best interest" standard and can recommend something to the court that your child may not want.

If the judge thinks your child is being abused, she can ask the Department of Children and Families (DCF) to take temporary custody. DCF used to be called DSS. For more about DCF, see  The Department of Children and Families.

If DCF is already involved, the judge may want to hear from your worker.

Some courts use "Court Appointed Special Advocates" (CASAs) to investigate custody cases. CASAs are volunteers from the community who are trained to investigate and give opinions to the judge.

The other parent said he will tell the judge something bad about me. Will that go against me?

The judge will want to know if there are any problems that make it hard for either of you to be a good parent.

If both parents are telling the judge different things (for example, you are telling the judge that he abused you in front of the children, and he is saying you are unfit, or crazy, or you drink too much), the judge may want more information from a neutral third party. The judge may appoint a Guardian Ad Litem or Probation Officer to find out which stories are true.

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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