Generally, it is well established that both parents have the right to visiting and spending time with their children. Absent misconduct or other pressing issues, the Courts will grant each parent visitation rights and order that they may spend time with their children. In some instances, however, the Court might find it appropriate to restrict visitation, to order supervised visitation, or even to order no visitation whatsoever for one parent. As with any other issues concerning custody and visitation of minor children, the Court will consider what is in the best interests of the child to determine how visitation rights should be ordered.

In the case of domestic violence, Massachusetts statutes provide that the Probate and Family Court judge must consider evidence of past domestic violence in weighing issues of visitation. [1] The statute notes:

If ordering visitation to the abusive parent, the court shall provide for the safety and well-being of the child and the safety of the abused parent. The court may consider:

(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;

(b) ordering visitation supervised by an appropriate third party, visitation center or agency;

(c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer’s treatment program as a condition of visitation;

(d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;

(e) ordering the abusive parent to pay the costs of supervised visitation;

(f) prohibiting overnight visitation;

(g) requiring a bond from the abusive parent for the return and safety of the child;

(h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and

(i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent.

In cases alleging abuse by the non-custodial parent, the Court may interview the child without the parties or their attorneys present. In the most extreme of cases, the Court is prohibited from granting visitation to a parent who has been convicted of the first-degree murder of the other parent, unless the child is old enough to signify assent. [2]

Under some other circumstances, visitation may be supervised or restricted, if it is in the best interests of the child to restrict it. For example:

  • Where the non-custodial parent has proven to be antagonistic and non-cooperative during visitation time. In one case, where the parties had a history of engaging in bitter battles and antagonistic behavior, the Appeals Court upheld a trial judge’s decision to severely restrict the father’s visitation.[3]
  • Where the non-custodial parent has sought to “indoctrinate” the child. In one case, the judge forbade visitation unless the father refrained from instructing the children in his religion, and the Supreme Judicial Court upheld the decision. The Court reviewed whether the exposure of the children was disturbing to substantial physical or emotional injury, and would likely have a harmful tendency in the future.[4]
  • Where the relationship between the child and the non-custodial parent deteriorated. Note that it is the parent’s relationship with the child which counts here. In fact, in one Massachusetts case, the Appeals Court upheld visitation for a father who had molested his stepdaughter and her friend. The Court noted that the father’s relationship with his biological daughter was good and unmarred by inappropriate conduct.[5]
  • Where the non-custodial parent has clearly engaged in some other type of misconduct to be considered by the Court.

One final note deals with the issue of the custodial parent seeking to move outside the jurisdiction and take the minor children with him or her. To what extent does the non-custodial parent’s right to see his or her child(ren) come into play? The Supreme Judicial Court has noted that this, like any other issue dealing with minor children, must be decided in the best interests of the child, but that both parents’ interests are also considered: the interest of the custodial parent in making a move which would be to his or her advantage, and the interest of the non-custodial parent in continued visitation with the child(ren). The fact that the non-custodial parent might be disadvantaged by the move is not the controlling factor, but it is a factor along with these others in the Court’s decision as to whether to grant the custodial parent’s petition to move the children.

If you have questions about visitation rights in your case, schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

[1] Mass. Gen. Laws, ch. 208 s. 31A

[2] Mass. Gen. Laws ch. 208, s. 28.

[3] Rolde v. Rolde, 12 Mass. App. Ct. 398 (1981).

[4] Felton v. Felton, 383 Mass. 232 (1981).

[5] Handrahan v. Handrahan, 28 Mass. App. Ct. 167 (1989).