When parents split up, sometimes they work out their own parenting plan. They plan where the children will live, visits and many other things that parents have to decide for their children. It is hard to make a parenting plan when one parent has abused the other parent If parents are unable to agree or if they want their agreement to be part of a court order, either parent can file a complaint in the Probate and Family Court that asks for a visitation order.
If the parents are married, a parent who wants visitation can file one of the following in Probate and Family Court:
If the parents are not married, a parent who wants visitation can file one of the following in Probate and Family Court:
If a parent wants visitation quickly, he or she can file a Motion for a Temporary Order of Visitation with any of the above complaints.
The Probate and Family Court can also order visitation under a 209A protective order if the person asking for the order agrees to visitation. A District Court cannot order visitation but will sometimes ask the parties if they want to set it up. This can feel like being pressured. You do not have to agree to setting up visitation in a District Court 209A case.
What is the court supposed to do about visitation if there has been abuse?
If the court decides that a pattern or serious incident of abuse has occurred, then if it orders visitation for the abusive parent the court must provide for the safety and well-being of the child and the safety of the abused parent.
In ordering visitation for an abusive parent the court may consider:
- supervised visitation;
- a safe setting for drop off and pick up;
- ordering the abusive parent to attend and complete a certified batterer's treatment program as a condition of visitation;
- ordering the abusive parent not to possess or consume alcohol or controlled substances during or before visitation;
- ordering the abusive parent to pay the cost of supervised visitation;
- prohibiting overnight visits;
- requiring a bond from the abusive parent for the return and safety of the child;
- ordering an investigation; and
- ordering any other conditon that is necessary for the safety and well-being of the child and the safety of the abused parent.
Can I ask the judge to appoint someone to help her decide about visitation in my case?
If you and the other parent cannot agree about visitation and you think the judge is not getting the whole story, you can ask the judge to appoint a “Guardian Ad Litem” (GAL). A GAL is a social worker, lawyer, or other person who is not on anyone’s side. A GAL’s job is to look into the case and report back to the judge with information that will help the judge decide about visitation. The judge can also ask the GAL for a recommendation about visitation. The GAL will talk to both parents, and may talk to your child. The GAL may also talk to other people who know your child, like relatives, teachers or day care providers. If you want to ask the judge to appoint a GAL you need to file a motion.
You can also ask the judge to appoint a GAL if the other parent asks for visitation and you think visitation is a bad idea.
The court will decide who should pay the GAL. Sometimes parents split the costs. Other times one parent pays the cost of a GAL. The court can order the state to pay the fees if neither parent is able to pay because they are “indigent”. “Indigent” means that your income is too low to pay court fees.
If the judge appoints a GAL, you should cooperate with him or her. Give the GAL names and phone numbers of people who know your child and agree with you about what is best for your child.
The GAL may disagree with you about visitation. Before you ask for a GAL, think about how strong your case is. Judges do not always follow a recommendation from the GAL, but they usually pay a lot of attention to it.
The judge may decide on her own to appoint a GAL, even if neither parent asks for one. Or the judge might appoint a Probation Officer from the court or someone else to help the judge decide about visitation. Probation Officers used to be called “Family Service Officers.”
Can the other parent get visitation when I go to court for a 209A protective order against him?
You can work out visitation as part of a 209A Protective Order if it’s what you want. To work out visitation as part of a 209A Protective Order, you have to file for your order in Probate and Family Court and ask the judge to decide visitation. The judge should only order visitation if you are the one asking for it.
District Court and Boston Municipal Court
If you get a 209A Protective Order in District Court or Boston Municipal Court, the other parent should not be able to get visitation as part of that hearing. These courts are not supposed to decide visitation in 209A Protective Order hearings.
Probate and Family Court
The Probate and Family Court can decide visitation as part of a 209A Protective Order if you ask the court to decide it. The other parent should not be able to ask for visitation as part of your 209A Protective Order hearing. The court can only order something in a 209A hearing if the person who filed the complaint asks for it.
If you file for a 209A Protective Order in Probate and Family Court, there is a section on the complaint form that asks about visitation. Fill it out carefully and write down exactly what you want. When you go before the judge, tell the judge what you want and why. If you think it is not safe for your child to visit with the other parent at all, tell the judge why.
The other parent can go to court and file a separate case asking for visitation, and he may get it. You may want to ask the judge to order visitation as part of your 209A Protective Order if you think there is a way to make visits safer or if certain times are better for visits than others.
You can tell the judge you need your brother to take your child to and from visits with the other parent because you are afraid of the other parent.
You can ask the judge to order visitation on Saturdays only.
We are in court because the Department of Revenue (DOR) filed a child support case. Do I have to let the other parent visit my child?
If you get TAFDC (welfare), DOR can file a case in court to get the other parent to pay child support. See Can I get TAFDC without going to court or helping DTA find him?
DOR is not supposed to help make agreements about visitation or custody. DOR is only supposed to deal with child support. If the other parent has abused you, tell DOR. Tell them when they first call or write to you, and tell them again when you are in court.
If the other parent did not serve you with any court papers telling you he wanted to bring up visits or custody, then he should not be allowed to talk about these things at the child support hearing. If he wants to ask the court for visits or custody, he has to send you a notice for another day in court. That means you get time to prepare an argument to explain why visits are not in your child’s best interests.
If the other parent does try to talk about visits when you are in court for child support with DOR, explain to the judge that there is abuse in your case. Also tell the judge that the other parent did not tell you that he would bring up these issues, and that you would like to get legal advice. See Child Support and Paternity.
Produced by an AmeriCorps Project of Western Massachusetts Legal Services updated and revised Massachusetts Law Reform Institute Last updated September, 2011