Guideline 12:06A
In a custody proceeding brought in the Probate and Family Court pursuant to G.L. c. 208, G.L. c. 209, or G.L. c. 209C, if the court finds, by a preponderance of the credible evidence, that a pattern of or a serious incident of abuse has occurred toward a parent or child(ren), a rebuttable presumption is created that it is not in the best interest of the child(ren) to be placed in sole custody or shared legal and physical custody with the abusive parent. G.L. c. 208, § 31A, G.L. c. 209, § 38, and G.L. c. 209C, § 10. This presumption may be rebutted if the court finds that awarding custody to the abusive parent is in the best interests of the child(ren).
When issuing any custody order where there has been a pattern, or serious incident, of abuse, the court must, within ninety days thereafter, enter findings indicating: the effects of the abuse on the child(ren), that the order is in the best interest of the child(ren), and that the order provides for the child(ren)’s safety and well-being.
Commentary
The issuance of one or more orders pursuant to c. 209A does not, in and of itself, constitute a pattern or serious incident of abuse. In addition, an ex parte order or orders will not be admissible to show whether a pattern or serious incident of abuse has occurred. Ex parte orders may, however, be admissible for other purposes as the court may determine. Finally, the underlying facts upon which an order or orders issued pursuant to c. 209A was based may form the basis for a finding by the Probate and Family Court that a pattern or serious incident of abuse has occurred. G.L. c. 208, § 31A, G.L. c. 209, § 38, and G.L. c. 209C, § 10. These statutes further provide:
In issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child. For the purposes of this section, ‘abuse’ shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury. ‘Serious incident of abuse’ shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing serious bodily injury; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress. For purposes of this section, “bodily injury” and “serious bodily injury” shall have the same meanings as provided in section 13K of chapter 265. . .
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 to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child.
G.L. c. 208, § 31A, G.L. c. 209, § 38, and G.L. c. 209C, § 10.
“Bodily injury” is defined in G.L. c. 265, § 13K as “substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin….” “Serious bodily injury” is defined in § 13K as “bodily injury which results in a permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ, or substantial risk of death.”
If the court finds during a contested trial that a pattern or serious incident of abuse has occurred, findings in support of the judgment should be entered in specific detail. See Custody of Vaughn, 422 Mass. 590 (1996); see also Care and Protection of Lillith, 61 Mass. App. Ct. 132, 139 (2004) (where the record reveals “sufficient concerns” about abuse, the court must “make detailed and comprehensive findings of fact on the issues of domestic violence and its effect upon the child.”), quoting Custody of Vaughn, 422 Mass. 590, 599 (1996) (additional quotation omitted).
There will be instances, however, when the child has been impacted by the pattern or serious incident of abuse, but, notwithstanding these effects, the best interest and the safety and well-being of the child necessitate that the court grant custody to the parent who has been abusive. Some of these instances include: the child poses a threat to the safety of the parent who has been abused or the other child(ren) in the household of the parent who has been abused; the parenting ability of the parent who has been abused is compromised, such that the child is presently at risk of danger in the care of the parent who has been abused; the child demonstrates a substantial emotional connection to the parent who has been abused; or, custody to the parent who has been abused currently poses a serious risk to the child’s psychological development.
In K.A. v. T.R., 86 Mass. App. Ct. 554, 561 (2014), the court found “that there was a pattern of abuse by the father against the mother within the meaning of G.L. c 208, § 31A, giving rise to the statutory presumptions that it is not in the best interests of the children to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent. Nonetheless the judge concluded that the father had rebutted the presumption that it was not in the children’s best interests to be in his primary physical custody. In arriving at his decision the judge considered among other things the children’s antagonism toward and alienation from the mother, the mother’s inability to control or discipline the children, the potential for violence between the mother and the children and the children’s feelings of safety when they were with the father.”
Regardless of who is granted custody – the parent who has been abusive or the parent who has been abused – the court is required to make findings as to the effects of the abuse on the child(ren). Effects may be fear of one parent, problems in school, trouble sleeping, nightmares, regressive behavior, and/or exhibiting hostile or aggressive behavior. See Guideline 12:02 Custody and Parenting Time Orders in Probate and Family Court: Assessment of Impact of Domestic Violence on Children.
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| Last updated: | October 20, 2025 |
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