Guideline 12:06
A Probate and Family Court judge must make written findings in support of an order for shared legal or physical custody in cases where abuse has been alleged, regardless of whether a c. 209A order is or has been issued. G.L. c. 208, § 31, G.L. c. 209, § 38, and G.L. c. 209C, § 10(a). See Custody of Vaughn, 422 Mass. 590 (1996).
Commentary
Shared legal or physical custody must be supported by written findings if there is a c. 209A order in effect, or if there had been a prior order. Custody of Vaughn, 422 Mass. 590, 599-600 (1996), citing G.L. c. 208, § 31. Section 31 provides that:
If, despite the prior or current issuance of an abuse prevention order against one parent pursuant to chapter two hundred and nine A, the court orders shared legal or physical custody either as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody order.
The findings required by G.L. c. 208, § 31 must indicate that the court has evaluated the effects of domestic violence on the child(ren) and how such a custody order advances the best interest of the child(ren). In Custody of Vaughn, 422 Mass. 590 (1996), the Supreme Judicial Court affirmed the Appeals Court’s decision to reverse and remand the Trial Court’s supplemental judgment, which granted primary physical custody to the father, for further consideration of evidence regarding domestic violence perpetrated by the father against the mother and the effect of the family violence on the child. Id. The Supreme Judicial Court found that, “the Probate Court had failed to give sufficient weight to the effects of domestic violence on women and their children.” Id. at 596. In remanding the case, the Supreme Judicial Court stated that the Probate and Family Court shall make “explicit findings” in this regard. Id. at 600. See also Adoption of Imelda, 72 Mass. App. Ct. 354, 364-365 (2008), rev. denied, Adoption of Imelda, 452 Mass. 1105 (2008); Care and Protection of Lillith, 61 Mass. App. Ct. 132, 139-143 (2004).
The Appeals Court has held that that “in order for joint custody or shared responsibility to work, both parents must be able mutually ‘to agree on the basic issues in child rearing and want to cooperate in making decisions for [their] children.’” Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981). The essence of shared custody is the ability to effectively communicate and to engage in joint decision-making. As such, if the parties have a demonstrated history of an inability to communicate safely, then an award of joint custody would be inappropriate.
The express language of G.L. c. 209C provides that joint custody can be awarded “only if the parents have entered into an agreement pursuant to section eleven or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of the proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child’s best interest.” G.L. c. 209C, § 10(a) (emphasis added); see also Custody of Odette, 61 Mass. App. Ct. 904, 905 (2004) (award of joint custody, in the absence of positive findings entered by trial judge as to parents’ demonstrated ability to communicate, constitutes reversible error). If such an award of custody is inconsistent with the no-contact provisions of a c. 209A order, see Guideline 12:07 Custody and Parenting Time Orders in Probate and Family Court: Amending Inconsistent c. 209A Orders.
Where the parties have reached an agreement on the issue of custody, the court should carefully review the agreement to ensure that the best interest of the child(ren) has been promoted by the agreement, and that the agreement provides for the safety and well-being of the child(ren) and the safety of the abused parent. The best interest of the child(ren) must be advanced in any award of custody or parenting time. If the court determines that the agreement of the parties is not in the best interest of the child(ren), the court must make a specific finding to that effect. See G.L. c. 208, § 31 (“Where the parents have reached an agreement providing for the custody of the children, the court may enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interest of the children”).
In circumstances where the court finds, by a preponderance of the evidence, that “a pattern or serious incident of abuse” has occurred, there is a rebuttable presumption against shared legal or physical custody. G.L. c. 208, § 31A. See Guideline 12:06A Custody Orders in Probate and Family Court: Custody Presumption Applicability.
When the parent who has been abusive is the primary care giver, the court is presented with a more complicated decision. Cessation of violence sometimes occurs following separation if there is no parental contact during exchanges. It is not uncommon for the parent who has been abusive to continue the conflict through the child(ren) by actions such as the withholding of parenting time. It is not uncommon for parents who have been abusive and who initiate violence to possess underlying emotional problems that impact their parenting. In many such cases, the primary caretaker and the child(ren) have an intense relationship that cannot be immediately severed without doing harm to the child(ren). A professional evaluation should be considered. Pending the evaluation, the court should consider whether to enter additional orders to prevent further harm to the child(ren).
Custody determinations may also have other consequences, such as the ability of the non-custodial parent to access their child(ren)’s school records. A statute pertaining to availability of school information to non-custodial parents, G.L. c. 71, § 34H provides:
For purposes of this section, any parent who does not have physical custody of a child shall be eligible for the receipt of information unless: (1) the parent’s access to the child is currently prohibited by a temporary or permanent protective order, except where the protective order, or any subsequent order which modifies the protective order, specifically allows access to the information described in this section; or (2) the parent is denied visitation, or, based on a threat to the safety of the child, is currently denied legal custody of the child or is currently ordered to supervised visitation, and the threat is specifically noted in the order pertaining to custody or supervised visitation. All such documents limiting or restricting parental access to a student’s records or information which have been provided to the school or school district shall be placed in the student’s record.
If there is an outstanding abuse prevention order but the parties have a written agreement that allows equal access to school records, or if the Probate and Family Court wishes to order such equal access in the parenting judgment or orders, then the Probate and Family Court should specifically amend the abuse prevention order to clarify those rights of equal access. If there is no outstanding abuse prevention order but the Probate and Family Court denies a non-custodial parent’s request for shared or sole legal custody, the Court should clarify whether or not such denial was based upon, at least in part, credible evidence of a threat to the safety of the child(ren) and/or to the custodial parent. That specific finding by the Probate and Family Court would prevent the non-custodial parent from obtaining access to school records under G.L. c. 71, § 34H(a). In all circumstances, given the statutory restrictions of G.L. c. 71, § 34H, best practice principles suggest that all orders and judgments from the Probate and Family Court involving minor children should clearly state each parent’s rights of access, if any, to school records.
Contact
Phone
Address
| Last updated: | October 20, 2025 |
|---|