Custody and parenting time when there is domestic violence

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 a judge finds that the other parent has abused you seriously or repeatedly, the judge should not give them legal or physical custody.

If the judge decides to give any kind of custody (legal, physical, or shared) 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.

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 legal or physical custody if they write down why they think shared custody will work and why it is in the best interests of the child.

So, if you have a 209A 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.

If there has been violence between the parents, often it isn't safe for the parents to have contact with each other during visitation. Sometimes abusive parents will use visitation as a way to continue to have contact with and control over the other parent.

In some situations, your child may be at risk during visits with a parent who has been abusive to you. In those situations, consider supervised visitation.

If the child's other parent has abused you, and you have agreed to visitation or the court has ordered it, you can make visitation safer for yourself and the child by considering the options below.

You can ask for custody when you fill out the application for a 209A restraining order. In a 209A Complaint a judge can only give custody to the person asking for protection from abuse.

Ask the court to give you custody on Pages 1 and 2 of the Complaint. Write in your Affidavit why you need a custody order to keep your children safe. Include:

• What happened and why you need an order.
• The things the abusive person said or did like, "They told me they would get their gun and shoot me." 
• Start with the most recent incident: 
  • information about injuries, 
  • if children were present or hurt, 
  • police involvement, 
  • medical treatment, 
  • other help you got, or 
  • destruction of property.

See Writing your 209A Affidavit.

You can file a 209A in a Probate and Family Court, a District Court, or a Boston Municipal Court. If there isn't an existing custody order, any of these courts can include a custody order as part of a 209A restraining order. 

If the Probate and Family Court has already made a custody order, the District Court can change it. But they need to take some extra steps. The District Court can make an immediate change to a custody order if it is an emergency and a child’s safety is at risk.

Important

Some District Court and Boston Municipal Court judges and clerks may tell you to go to Probate and Family Court to get a 209A protective order when children are involved. The 209A Guidelines say District Court and BMC judges and clerks should not send you to another court. You have the right to get a 209A order from a District Court or Boston Municipal Court to protect your children.

You can ask for parenting time or visitation when you fill out the application for the 209A restraining order. But, you can only do this if you are filing the 209A in Probate and Family Court.

On the 209A Restraining Order Application, go to the Complaint for Protection from Abuse form (page 3), Part E, Visitation. You can check one or more boxes saying that you ask the court to:

• Allow (permit) visitation,
• Not allow visitation (order no visitation),
• Allow visitation only at a certain visitation center, and specify who will pay for it,
• Allow only visitation supervised by a certain person who you name, and specify the times,
• Order visitation only if a third person, who you name, picks up and drops off your child or children, or
• Other (write in).

See a sample 209A Complaint that asks the judge to protect your child.

The District Court can make an order that stops or changes a parenting time order from the Probate and Family Court if it is an emergency and a child’s safety is at risk. The District Court will notify the Probate and Family Court of this change, and the Probate and Family Court will schedule a hearing within 30 days.

The Custody Awareness Collaborative has written a guide for survivors who are in a custody case in Massachusetts where the other parent in the case has harmed you or your children on purpose.

This guide has recommendations from survivors of abuse, lawyers, and domestic violence advocates. This guide can help you prepare for your case and understand the people and processes in the court. It can also help you take care of yourself and your children along the way.

The guide is not just for custody cases. It helps you prepare for any case in the Probate and Family Court.

Custody cases can be long and draining, and some of the things in this guide may sound bad. But by reading it, you will be better prepared. 

See A Survivor's Guide to Custody in the Massachusetts Probate & Family Court (2018).