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How does the judge decide custody when there is domestic violence?

Produced by Attorney Jeff Wolf for MassLegalHelp
Created February 2017

Protecting children from domestic violence is in their best interest. If you have a 209A Abuse Prevention Order, the judge must consider it when they decide custody. You do not have to have a 209A order for the judge to take domestic violence into account. You can tell them about it in your case.

If I show the judge there is domestic violence, how do they decide custody?

If you show the judge there is domestic violence in your relationship with the other parent, the judge must take it into account. Children suffer when one parent abuses the other.

If the other parent has abused you seriously or repeatedly, the judge should not give them legal or physical custody.1

If the judge decides to give custody to the abusive parent, the judge must have a very good reason. And the judge must explain the reason in writing.

Important

You do not have to have a 209A Abuse Prevention Order to prove to the judge that the other parent abused you.

What if I have a 209A Abuse Prevention Order?

A 209A Abuse Prevention Order by itself does not mean the judge will give you sole custody.

But, a 209A order means the other parent has abused you. It is probably not safe for you to make decisions about your child with someone who has abused you.

Also, an abusive person can use shared custody as a way to control and harass you instead of doing what is best for your child. For example, when your child spends time with the other parent, that parent can make it impossible to plan or follow the parenting time schedule.

If your 209A order says the other parent cannot contact you, the judge has a good reason to give you sole legal custody. The other parent cannot share in making major decisions about your child if they are not allowed to contact you.

If your 209A order says the other parent cannot have contact with your child, the judge has a good reason to order sole physical custody. A 209A order that says the other parent cannot have contact with your child means the judge decided contact with your child is not safe.

If you are married to the other parent and you have a 209A order, the judge can only order shared custody if they write down why they think shared custody will work.

So, if you have a 209A Protective Order against your spouse, the judge can only make you share legal or physical custody if the judge explains in writing why joint custody is a good decision.

Endnote

1 “A probate and family court’s finding, by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interest of the child to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent.” General Laws, Chapter 208, section 31A.

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