Guideline 12:02
Children respond to domestic violence with a range of symptoms. The court must demonstrate in its findings that the effects of the violence have been considered and that the custody and parenting time orders advance the best interest of the child(ren).
Commentary
Where “the record raises sufficient concerns regarding domestic violence,” the court is required to “make detailed and comprehensive findings of fact on the issues of domestic violence and its effect upon the child.” Care and Protection of Lillith, 61 Mass. App. Ct. 132, 139 (2004), quoting Custody of Vaughn, 422 Mass. 590, 599 (1996) (additional quotation omitted). When making an order for custody and parenting time, the court should consider the symptomatology of the child(ren). The range of reactions experienced by children when exposed to domestic violence varies with the age(s) and gender(s) of the child(ren), the intensity and frequency of the violence, and the proximity of the child(ren) to the event(s). Very disruptive symptoms related to trauma can be exhibited by children even when they have not been personally subjected to direct physical or sexual abuse. Assessing and evaluating the impact of the violence on the particular child(ren) is required where credible evidence of physical abuse to a household member is perpetrated by a person seeking custody of or parenting time with the child(ren) in a divorce proceeding. See Schechter v. Schechter, 88 Mass. App. Ct. 239 (2015) (Probate and Family Court judge did not abuse discretion when the judge ordered that the mother have sole legal and physical custody of the child and that there be a one year cessation of contact between the father and the child where the judge found that the father engaged in physical, emotional, and financial abuse of the mother).
To assess the impact of the credible domestic violence on the child(ren), the court should consider the following factors: has/have the child(ren) ever been hit or physically hurt by inadvertent or intended violence; has/have the child(ren) ever been threatened by the parent who has been abusive; has/have the child(ren) personally witnessed any violence; has/have the child(ren) ever called the police to stop the violence or intervene in a violent episode; and, has/have the child(ren) developed problems in school or with peer relationships. Other questions relating to the child(ren)’s emotional, psychological, and physical well-being should be asked to determine the need for further professional evaluation of the child(ren). If there is such a need, the court should consider the safety of the child(ren) which may result in a more restrictive order such as supervised parenting time or suspended parenting time pending the evaluation.
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 interests of the child(ren) to be placed in sole custody, shared legal custody, or shared physical custody with the defendant. G.L. c. 208, §§ 31 and 31A. See Guideline 12:06A Custody Orders in Probate and Family Court: Custody Presumption Applicability.
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| Last updated: | October 20, 2025 |
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