Criminal Charges and Custody: Domestic Violence

Criminal Charges and Custody in Massachusetts

Part 2: Domestic Violence and Custody

Many parents who have survived abuse feel that their voices are not heard and believed by judges. Many others feel that a false allegation of abuse has given the other parent a quick and unfair advantage in the custody determination. So, what is the judge obliged to consider in these difficult cases and what does the law say? 

The Starting Point

A judge must decide what is in “the best interests of the child.” Statutory factors that the court may consider include: the child’s relationship with each parent, the child’s residence over the past six months, each parent’s physical, emotional, and mental health, the child’s health and needs, the child’s relationship with siblings and their residence, the child’s preference, if he or she is old enough to have a meaningful opinion, each parent’s ability to act in the child’s best interest, whether the child’s present or past living conditions negatively impacted his or her physical, mental, moral, or emotional health, either parent’s abuse of alcohol or other drugs, each parent’s ability to cooperate in childcare matters, whether either parent has deserted the child in the past, and either parent’s past or present abuse toward a parent or child.

Abuse Defined

Abuse is defined by Massachusetts law as “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.” The law further defines “serious incident of abuse” as follows: “the occurrence of one or more of the following acts between the 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.” Massachusetts General Laws c. 208, sec. 31A Serious bodily injury is bodily injury that “results in permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ, or substantial risk of death.” Massachusetts General Laws. c. 365, sec. 13K. 

The Inquiry

Judges are required to consider evidence of domestic violence when making custody decisions. If a parent in a custody dispute alleges abuse by the other parent, the family court judge first has to make a finding of whether abuse occurred. Massachusetts General Laws c. 208, sec. 31A mandates the following, “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.” If a judge makes a finding, by a preponderance of the evidence, that a pattern of abuse or a serious incident of abuse has happened, then the judge must presume that placement of a child with the abusive parent is not in the child’s best interest. However, this presumption can be overcome by evidence that custody to the parent found to have committed abuse is in the child’s best interest. 

Types of evidence that judges will consider include: sworn testimony or affidavits of the parents, photographic evidence, confession evidence (such as text messages, emails or voicemails), the existence or absence of criminal charges, witness statements, and restraining orders. In some cases, the judge will appoint a guardian ad litem to interview people involved in the case and write a report for the court. The guardian ad litem will interview the parents and the children, other close people in the children’s lives and, if appropriate and permitted, the children’s counselors or therapists, pediatricians, and school psychologists and teachers. It is important to note that, outside of a guardian ad litem report or ARC attorney (a lawyer who represents the child), judges are wary of representations about what the children have to say.  Letters from the child’s therapist or doctor will not be permitted without express permission of the court because the child has his own rights to privileged relationships with his providers, no matter how young he or she is. 

The Role of Restraining Orders

What if there is a restraining order? Massachusetts General Laws c.209A allows a person suffering from abuse by a family member to seek a restraining order from the district or family courts. These orders are initially obtained ex parte, meaning that the restraining order issued on an emergency basis without notice to the accused. These initial orders are temporary, lasting no more than 10 days, so that the accused has an opportunity to be heard at a subsequent hearing, the “return date”. Ex parte temporary restraining orders are, generally, inadmissible as evidence to show whether a pattern or serious instance of abuse occurred. If the restraining order is extended after the return date, that order may be tendered as evidence in the family court, but will not be sufficient, on its own, to prove that abuse occurred. An extension of a temporary order will carry weight with a family court judge, because it is an order that a judge made after having the opportunity to hear from both sides. 

Pending Criminal Charges

What if there are criminal charges? Criminal charges of domestic violence, such as assault and battery on a household member, indecent assault and battery on a household member, or harassment will be considered in a custody determination. If a parent has been charged with a crime of domestic violence, his or her chances in the family court are deeply diminished. Again though, the fact of pending criminal charges will not be sufficient on their own to prove that abuse occurred under the preponderance of the evidence standard. In order for the government to proceed on criminal charges only requires proof of “probable cause” to believe that a crime has occured. This standard is lower than the preponderance of the evidence standard required by the law for the family court’s “abuse” determination. 

Judge’s Findings

If a judge makes a finding of abuse and then issues a custody order, the judge is required to enter written findings of fact that explain the effects of the abuse on the child. The judge’s written conclusions must show why his or her decision is in the best interests of the child. If the judge awards parenting time to the parent found to have committed abuse, the judge may order protective measures for the benefit of the child and/or the other parent. Examples of protective measures include orders for supervised visits, special locations for visits, the parent to complete a batterer’s treatment program, abstinence from alcohol or substance use, and the costs of supervised visits be paid by the abusive parent. 

So What Does This All Mean in Practice?

Judges are required to consider evidence of domestic violence in custody cases. Judges are also discerning in their assessments of the evidence as they determine what is in the best interest of the children. 

If you are reading this because you or someone you care about is involved in a custody dispute, the first thing to know is that you will have a limited amount of time in which to effectively present your best facts. Often, parents on both sides come away feeling that the judge did not hear, or consider, everything. That may be because the judge was able to quickly assess the situation and identify the issues. Or it may be that the case was not effectively presented. Or, it may be that the parent has an unrealistic expectation of what they will be allowed to present (next week, I will go into detail on case law that discusses evidence of past abuse in a custody modification trial). 

You also must know that close, private details of your personal life will be aired in open court. They will then become part of a permanent public file that can be accessed by anyone, including your adult children. Text messages and emails you have sent, details about your role in the family and relationship with your children, police reports that relate to you or your family, DCF reports that relate to you or your family, witness statements, and, sometimes most painfully, sworn affidavits by your co-parent detailing their complaints about you – may all come before the judge. 

How you act as your case is pending matters. Regardless of how your co-parent is behaving, you will be best served by “keeping your side of the street clean.” That means continuing to make efforts to show your children love, even in the face of alienation by your co-parent. That means exercising restraint in your communications. (Many parents are found cringing before judges as they hear back their own words by way of fiery text messages sent without a moment’s reflection). That means not discussing the dispute with your children. That means taking care of yourself so that you can be the best parent you can be. 

Check back for Part 3 in my series Criminal Charges and Custody: Evidence of Past Crimes or Violence.