How does Domestic Abuse affect Child Custody?

Warning: Themes of domestic abuse.

Jacob and Leah are 7-year old twins. Their parents, Jeff and Hannah, were married for eight years before finally deciding to pursue a separation and ultimately a divorce.

The relationship Jeff and Hannah was tumultuous. For the latter five years of their marriage, Hannah struggled with depression. Jeff did not support Hannah’s mental health needs. In fact, Jeff was abusive towards Hannah. He was verbally abusive most frequently, but also, was occasionally physically abusive when he would drink, which was often. On one occasion, the local police showed up to their home for a domestic violence incident in which Jeff attempted to throw the house phone at Hannah’s head, barely missing her. Jeff’s substance abuse issues caused most of the domestic violence and other abuse issues in their home.

Finally, Hannah decides to file for divorce. The divorce forced Jeff to reevaluate his life and has since become sober and takes anger management courses. He sees a therapist regularly. The probate and family court must decide where to place the twins, Jacob and Leah. One of the questions for the court to consider is whether Hannah or Jeff may have temporary or permanent custody of their twins, Jacob and Leah.

Jeff wants to know: does he have a chance at having Jacob or Leah placed with him? Can he have custody of his children?

Best Interest of the child

Massachusetts law requires that children are placed with parents or a parent or put into circumstances that are in the best interest of the children. The law states that in issuing a temporary or permanent custody order, the probate and family court must consider any evidence of past or present abuse toward a parent or child as a factory that is contrary to the best interest of the child.¹ This does not mean that a parent with a history of abuse cannot have custody of a child. It does mean, however, that the court must view what is in the best interest of the child from the viewpoint of that child, taking several factors into account before awarding an order of temporary or permanent custody.

In Massachusetts, “abuse” is either attempting to cause or causing bodily injury or placing another in reasonable fear of bodily injury.²  This definition of abuse applies to acts between a parent and another parent or between a parent and a child. If a court determines by a preponderance of the evidence that a pattern of abuse has occurred, a rebuttable presumption is created whereby the abused parent is not the parent that a court would consider to be in the best interest of the child for sole custody, shared legal custody, or shared physical custody.  The presumption may be rebutted with evidence that the placement would be in the child’s best interest.

Legal Custody vs. Physical Custody

In the fact pattern above, Jeff attempted to cause injury to Hannah during their marriage. He was frequently verbally abusive, especially when he was drunk. He also placed her in fear of imminent serious bodily injury. Although he took these actions when he was drinking, a court would likely find that he was abusive. Depending on the extent of abuse the court finds, a court may find that Jacob and Leah should not be placed in shared legal custody with Jeff. If the mother is granted sole legal custody, Jeff will still be allowed to see medical records and be part of their lives but would not make any major decision for them. For the sake of our fact pattern, let’s assume the court finds extensive abuse during the marriage. The court awards the mother sole legal custody and then moves on to a physical custody determination.

Visitation Time

In this fact pattern, the court orders temporary supervised visitation to Jeff. Supervised parenting plans can vary widely.  Some are supervised by other family members while some are supervised by professionals. The visits in this hypothetical might be an hour or longer and happen monthly or weekly depending on the severity of Jeff’s previous abuse.

After a reasonable period of time successful supervised visits, Jeff can file for shared physical custody. He could do this by convincing the judge that he is sober and has overcome his anger management issues, supported by the supervisor’s notes and possibly his therapist. He may also wish to note that he has never been abusive toward his children. If there are other facts about Hannah’s behavior that would support the argument that she should have less time, he should assert them at this point.

Essentially, Jeff must convince the judge of a material change in circumstances (his sobriety and treatment in this case) and that a more equal parenting plan is in the best interests of Jacob and Leah.


There are many complexities to family law, especially within the issue of complex child custody. As such, it is important that you hire a competent family law attorney to handle your unique case or address your concerns.  If you have questions about complex child custody issues, divorce, abusive marriages, child law, or custody law, you should hire a seasoned attorney licensed to practice law in the Commonwealth of Massachusetts. Consider meeting with an attorney from our office to discuss you case. Just contact our offices by phone at (866) 995-6663 of schedule a consultation online.


¹ Mass. Gen. Laws. c. 209 s. 38

² Id.

What are the Requirements to File my Divorce in Massachusetts?

Imagine:

Five years ago, you married your spouse in Massachusetts. During this time, you had two children, shared a marital home, had a business together, and shared countless other assets. You have decided to file for divorce, but things have gotten a bit complicated. Your (soon-to-be former) spouse wants to move out of state and have custody of your children. You probably have so many questions, like can you file for divorce here? Does this story sound like something you are going through? The jurisdictional requirements for filing for divorce in the Commonwealth are the first steps in the process. This article will explain if your divorce can be filed here, what to do if your spouse is leaving the Commonwealth during the proceedings, and how this complication can affect child support and custody.

First, you must determine if your divorce can be filed in Massachusetts. You may file the divorce action in Massachusetts based on the domicile of both parties. Domicile is defined as a person’s permanent residence where they live full-time, or the intent of a person to remain permanently or for a period in a new place. To determine domicile in a divorce proceeding, Massachusetts judges consider how long a person lived in Massachusetts, and any further signs of permanent residency. These signs can include a mortgage on a home, a Massachusetts driver’s license or whether children were being raised in the Commonwealth. In short, if you are filing for divorce in Massachusetts, you must have been living in Massachusetts at least one year before the filing or if you are living in Massachusetts at the time of the divorce and the divorce occurred in the Commonwealth, jurisdiction is still valid. See G.L.c. 208, §5. If the cause of action for your divorce occurred here, you have subject matter jurisdiction here.

Massachusetts Long Arm Statute

If your former spouse continues to say that because they moved they cannot be asked to participate in a divorce in Massachusetts, you have two options:  Rule 4(e) of the Massachusetts Rules of Domestic Relations Procedure, and the Massachusetts Long Arm Statute. Rule 4(e) explains the jurisdictional requirement of service of process during a divorce case. Rule 4(e) will give your former spouse proper legal notice that there is a divorce action against him or her.  The rule states:

When any statute or law of the Commonwealth authorizes service of process outside the Commonwealth, the service shall be made by delivering a copy of the summons and of the complaint: (1) in any appropriate manner prescribed in subdivision (d) of this Rule; or (2) in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction; or (3) by any form of mail addressed to the person to be served and requiring a signed receipt; or (4) as directed by the appropriate foreign authority in response to a letter rogatory; or (5) as directed by order of the court. (Mass. R. Dom. Rel. P. 4(e).)

Additionally, the Massachusetts Long Arm Statute describes when a court can exercise jurisdiction over a person who engaged with business or other affairs in the state. This statute allows the state to bind a defendant in a divorce hearing to the laws of the Commonwealth. Specifically, the Massachusetts Long Arm Statute states that if anyone maintains a domicile within the Commonwealth of Massachusetts during a “personal or marital relationship of of which arises a claim for divorce…”, the case can be heard in the Commonwealth. See Mass. Gen. Laws ch. 223A, s. 3(g).

Having contact with more than one state can affect child custody and support decisions as well. Regarding child support, please be aware that the Massachusetts Long Arm Statute can further apply to your claim for child support against your former spouse if they move. If you continue to live in the state with your children, the Court may exercise jurisdiction over your former spouse, and you may petition the Massachusetts Probate and Family Court as well.

Nationally v. Massachusetts

Regarding child custody, you may be wondering if more than one state can enforce a custody decision? Will Massachusetts law take precedent? The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) of 1997 has been adopted by 49 states – EXCEPT FOR MASSACHUSETTS! This act aims to establish jurisdiction over child custody in one state and to protect these orders from being modified in a different state.

Unlike the rest of the country, Massachusetts relies on the Massachusetts Child Custody Jurisdiction Act (MCCJA), the Massachusetts Uniform Interstate Family Support Act (UIFSA), and the Federal Parental Kidnapping Prevention Act (PKPA). These laws state that if a child resides in Massachusetts when a divorce is filed, Massachusetts can exercise jurisdiction over the children in that specific case. Like the UCCJEA, the Commonwealth may exercise temporary jurisdiction over a child where there is kidnapping or child endangerment. While the MCCJA and UCCJEA share many similarities, things may become difficult if your former spouse wants to take the children with him or her to their new state. While the UCCJEA allows the court where the divorce was initiated to retain jurisdiction over a child’s case, even if they have left, MCCJA does not. The Commonwealth’s act prohibits Massachusetts courts from retaining jurisdiction over children once they leave the state. These situations create a lot of confusion which can lead to two custody cases ongoing simultaneously. This financial and stressful burden that stems from Massachusetts’ difference is important to note when filing for divorce.

If you need more information surrounding the jurisdictional requirements in a divorce proceeding, or family law generally, you may schedule a free consultation with our office. Call (866) 995-6663 during regular business hours or schedule a phone consultation.

Spousal Disinheritance: New Massachusetts Case Law

The term “spousal disinheritance” refers to the ability of a person to draft a will which leaves nothing to his or her spouse upon death. In Massachusetts, this doctrine is not completely recognized—that is to say, a person cannot entirely disinherit his or her spouse, whether by design or inadvertently. One way that the Commonwealth has ensured this is through its adoption of a spousal elective share statute, which is found in Massachusetts General Laws chapter 191, section 15.

Case of Ciani v. MacGrath

That elective share statute was at the center of controversy in a recent decision by the Massachusetts Supreme Judicial Court. The case of Ciani v. MacGrath involved a claim by a widow who elected her spousal statutory share of her husband’s estate after he passed away. The decedent was survived by his wife and four adult children from a previous marriage. The husband made no provisions for his wife in his will.

After claiming her spousal statutory share, the wife also filed three separate actions for partition, seeking to force the sale of three separate pieces of real estate that her husband owned at the time of his death. As justification, the wife argued that the elective share statute provided her with a life estate in an undivided one-third of each property. The wife further claimed that any interest the children may have owned in the properties was subject to her respective life estates.

Life Estate

As the name suggests, a life estate is an interest in real estate which allows the holder of the life estate to live on and enjoy the property for the duration of his or her life. The relevant portion of the statute in question provides that a surviving spouse is entitled to one-third of the decedent’s real and personal property, but “if he or she would thus take real and personal property to an amount exceeding [$25,000] in value, he or she shall receive, in addition to that amount, only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life.”

The husband’s children opposed the wife’s action. They claimed that the to the extent Susan’s shares of Raymond’s property exceed $25,000, § 15 reduces her interest in the real property from an outright ownership interest to an interest in the income produced by the property for her life. The children interpreted the statute as giving the surviving spouse a right to the income generated by the trust that holds the personal property and a right to the income generated by the real property, which is vested in the surviving spouse for life.

In other words, the parties’ dispute in the case centered around whether the statute gave the wife an outright interest in a life estate – following her outright interest in the first $25,000 of the husband’s property – or merely an interest in the income from that life estate. The difference comes down not only to the value of the property, but also to the type of interest given to the surviving spouse as a matter of law.

Outcome

In order to resolve this issue and determine the meaning of the statute, the high court looked to the intent of the Massachusetts Legislature in enacting section 15. “[A]ffording the surviving spouse a life estate is consistent with the cause of § 15’s enactment and the main object to be accomplished,” the Supreme Judicial Court noted. “A life estate is a well-established real property ownership interest with clearly defined rights and obligations, as well as an ascertainable value.  The income interest suggested by the children is not an ownership interest at all… Indeed, it would be inconsistent to prevent one spouse from disinheriting the other as a matter of public policy but allow the offending spouse’s heirs to do what he or she could not.” Because the wife in this case was entitled to a life estate, the high court held that she and the children were tenants in common, and that she was entitled to partition.

If you have any questions about divorce, custody, or family law issues, you may schedule a free consultation with our experienced attorneys or call (866) 995-6663 during regular business hours.

My ex refuses to get medical treatment for my child – what can I do?

Choosing a medical treatment is a tough decision for most people, but it becomes more difficult if the treatment is for a loved one. For any parent, there is nothing more terrifying and painful than the feeling that you cannot help your child. This is compounded if your child is ill and there is nothing that you can do to make your child better. Imagine, however, that there is something that you can do, but your ex is preventing you from taking steps that will help your child.

Imagine this scenario:

You and your ex have two children. One of your children has been diagnosed with a serious medical condition that requires expensive and experimental medical treatments. Your child’s physician tells you that without the treatments, your child’s condition is life-threatening. The physician also tells you that the treatments have a 33% chance of helping your child. Unfortunately, your ex and their new partner believe in “the power of prayer” and believe that if your child is meant to get better, then God will make your child better with prayer. Your ex has sole legal and physical custody. What can you do to help your child to receive these medical treatments?

Types of Custody:

In Massachusetts, there are four different types of child custody arrangements. In some cases, Parents can make their own arrangements.The judge will determine what parenting plan is in the best interest of the child or children. Sole legal custody gives one parent the right and responsibility to make major decisions about the child, including decisions about education, medical care, religion, and emotional needs. Sole physical custody means that a child lives with one parent and is subject to reasonable parenting time by the other parent, unless the Massachusetts Probate and Family Court judge decides that parenting time between the child and the parent would not be in the best interest of the child. Parenting time is a form of visitation. The parent with parenting time does not have physical custody of the child.

Judges in the Commonwealth determine what is in the best interest of the child when they make decisions about children. The court evaluates the child’s well-being; how the child is doing in school and in the community; the child’s relationship with the parents and other members of the family; the parents’ history of abuse, drug use, or abandonment; whether one parent has been a primary caregiver in the past; and the child’s preference, depending on the age and maturity of the child.

What can be done?

When a substantial and material change in circumstances exists, one party may move to request that the court modify the current child custody arrangement. Because of this, the father from the example above may request that the court award him legal custody. This would allow him to make the medical treatment that he believes are in the best interest of the child. A court would likely evaluate the child’s best interests through the lens of the child, not the lens of the mother’s boyfriend’s religious beliefs. The court would likely modify the custody arrangement, allowing the father to make the sole medical decisions for the child. The court would not consider the mother’s boyfriend’s religious beliefs. This decision is between the parents, the court, and the child and is one that is only about the child’s best interests.

Suppose instead that another party—not a parent—wants to challenge custody using the facts above. For example, could a grandparent, a school, or a Guardian Ad Litem challenge the religious beliefs of the parents if the other party believes that the parents are not acting in the best interest of the child? The answer…yes and no. While another party may challenge the beliefs of the parents through a protective services agency, via parens patriae, a Massachusetts court would not take this power away from the parents if the treatment were so experimental so as to provide no chance at saving or helping the child. A Massachusetts judge would need to decide what is in the best interest of the child when making such decisions.

If you have any questions about issues involved in family law, child law, child custody law, or other issues, you should contact a competent family law attorney. Our experienced professionals may be able to work on behalf of you. Please contact our offices at your earliest convenience by phone at (866) 995-6663 or complete a contact form on our website. We will return your inquiry with prompt attention.

How do you navigate child custody as an unmarried couple?

Raising a child as an unmarried couple can be difficult, but the state of Massachusetts has guidelines on how to navigate child custody issues. Some legal issues that unmarried couples will have to consider are: establishing paternity, child support, and visitation. While navigating these issues, it’s in your best interest to hire a competent family law attorney to ensure a fair arrangement that most benefits the children.

It’s important to keep in mind that the main goal of child custody is to come to an agreement where the parents are able to raise children together, while being apart. Every child custody agreement looks different and is very fact-specific depending on the couple’s situation. The one thing all parents have in common regardless of their marital status is that they are permanently connected through their children. And from this it is important to remember that these custody matters are being handled for the child.  It is important to keep in mind that when carrying out these discussions to find the best solution for the child.

Establishing Paternity

In Massachusetts, if child is born into a marriage, there is a presumption that the husband is the father of the child. However, for a child of an unmarried couple to have a legal father, paternity must be established. A father may establish paternity by signing the birth certificate at the time of the child’s birth or either parent may request a court order for genetic testing. Establishing paternity creates several rights for a child. Some of those rights include, giving the child access to their father’s medical history if they become ill, being financially supported by their father, and receiving access to their father’s services, such as their father’s pension, health insurance, inheritance, and social security.

Child support

Child support is a payment by one parent to the other and is one way for parents who don’t live together to share the financial responsibility of their child. In Massachusetts, it doesn’t matter if you are married to the child’s other parent, if you are the legal parent of the child you are required to support them. Child support payments a determined by the court after they review several factors including:

  • The cost of raising the child, including medical bills and school tuition
  • Monthly expenses of each parent (housing, health care, etc.)
  • Income of each parent.

Usually, one parents will to be primary care taker who bears most of the financial expenses.  Therefore it’s the court responsibility to consider the non-exclusive list of factors mentioned above to come up with an appropriate amount the other parent should pay in child support each month. Child support payments can be modified. A modification is warranted if there is a material change in either parent’s income or with the child’s needs.

Visitation order

A visitation order gives the parent who does not live with a child a way to spend time regularly with the child. In some cases, unmarried couples are able to come up with an agreement on their own and the court will enter the order. However, in other cases non-married parents are not able to come up with a visitation order that they both agree on. In situations where the parents are unable to agree, the court will enter its own agreement. Regardless of the parent’s ability to cooperate with one another, when establishing a visitation agreement, the main goal of the court is to come up with an arrangement with serves the best interest of the child.

Regardless of whether you are married or unmarried, the issues surrounding child custody can be complicated and cause emotional distress. It’s essential to keep in mind that when coming to an agreement with a child’s other parent that the child’s best interest is of the utmost importance. If you find yourself in the middle of a dispute regarding paternity, child support, or visitation it is best to seek help from a qualified family law attorney. Our attorneys are able to set emotional drives aside and see the most important thing for the child and represent that throughout the case.  Our divorce, family, and domestic relations attorneys may be able to work with you to help resolving you family matters. Contact our offices by phone at (866) 995-6663 during business hours to schedule a free consultation.

Termination of Parental Rights and the Effective Assistance of Counsel

In a recent decision, Adoption of Ulrich, the Massachusetts Appeals Court addressed the termination of parental rights of a mother of five children, along with the mother’s entitlement to effective assistance of counsel.

The mother in this case had a lengthy criminal history and was the subject of five abuse prevention orders. The Department of Children and Families filed a care and protection proceeding on behalf of the children after the mother was arrested for stabbing the children’s father with a pair of scissors, with the children witnessing the incident. Temporary custody was initially granted to the maternal grandmother, then to a paternal aunt; however, after evidence of abuse in the aunt’s home emerged, the Department retained custody of the children.

In the following years, the mother’s willingness to work on her mental health and substance dependency issues fluctuated: at times, she was unwilling to enter a residential program or see her therapist, while at other times, she was willing to do so. Likewise, her visits with her children ranged from “successful to disastrous,” as the Court put it, some of the visits ending with the children running out of the room and crying and the mother hurling obscenities at them.

After a particularly tumultuous visit in which the mother declared that she was “done” and “these kids aren’t [my] issue, let their workers deal with them,” the Department informed the mother that her parental rights would be terminated. After a trial, the judge issued orders terminating the mother and father’s parental rights.

The mother appealed. After the mother entered the appeal, she motioned the Court to stay the appellate proceedings, so that she could bring a claim of ineffective assistance of counsel, vying for a new trial in the Juvenile Court. A single appellate justice heard that motion and denied it. The Appeals Court acknowledged that the mother was entitled to the effective assistance of counsel in a termination of parental rights proceeding.

However, the Court agreed with the single justice, holding: “we discern no error of law or abuse of discretion in any choice by the single justice to consider the prospects of the mother’s new trial motion for success in the Juvenile Court if a stay were granted; indeed, such consideration is entirely consistent with the consideration of judicial economy…and the interest in prompt resolution of custody. Placing the appellate process on hold to allow prosecution of a fruitless new trial motion in the trial court would serve neither interest.”

The Appeals Court then looked at the crux of the mother’s claim for ineffective assistance of counsel: he claims that her attorney erred by not calling the maternal grandmother to testify at trial. The Court noted that the mother at one point accused the grandmother of fabricating claims of sexual assault, which made it entirely reasonable for the mother’s attorney not to call the grandmother as a witness, in order to avoid damaging testimony elicited on cross-examination. “In any event, the evidence of the mother’s unfitness was overwhelming, without regard to the matters about which the mother now claims the maternal grandmother should have testified,” the Court noted. “It is accordingly unlikely that the decision of trial counsel about which the mother now complains had any bearing on the result of the trial.”

The Appeals Court then considered the mother’s parental fitness, ultimately affirming the trial judge’s decision to terminate parental rights. As the Court described, parental rights can only be terminated when it is in the best interests of the child and when the judge determines that the parent is unfit. In this case, the Court held, there was ample evidence that the mother was unfit. Moreover, the Court noted that mere participation in services does not render a parent fit, without some discernible evidence of improvement of her parenting.

The Appeals Court also noted that it was in the best interests of each of the mother’s five children to terminate parental rights, allowing the children to be placed in homes which would assist them with their various mental health issues, early intervention services, therapy programs, and a stable environment.

If you have any questions about divorce, custody, or family law issues, you may schedule a free consultation with our experienced attorneys. Call (866) 995-6663 during regular business hours.

What are the rights of the custodial parent versus non-custodial parents?

In Massachusetts, when a parent separates their partner, they may not agree about how they will handle the various circumstances that arise when raising their child. Because of this, either party (or both) parties may ask a Massachusetts judge to write an order asking for custody, which a judge may accept, reject, or modify.

Let’s say that a father lived and worked in Massachusetts. A mother and her new husband decided to move from Massachusetts to Rhode Island. The mother had been awarded sole physical custody of their child, Corey. The father, therefore, is a non-custodial parent. He wants to know if he has any rights to his child. He is upset that his visitation will be changed if the mother and her new husband move to Rhode Island, especially because the new move means that he will be over 50 miles away from his son.

In Massachusetts, there are four different types of child custody arrangements. Parents can make their own arrangements, and the judge will determine if the agreement that the parents craft is in the best interest of the child or children.

The first type of custody is “sole legal custody.” This form of child custody gives one parent the right and responsibility to make major decisions about the child, including decisions about education, medical care, religion, and emotional needs. Another type of child custody is “shared legal custody,” meaning that both parents are involved in and responsible for the major decisions about the child. A third form of custody is “sole physical custody,” which means that a child lives with one parent and is subject to reasonable parenting time by the other parent, unless the Massachusetts family court judges decide that parenting time between the child and the parent would not be in the best interest of the child. Parenting time is a form of visitation. The parent with parenting time does not have physical custody of the child. The final form of child custody is “shared physical custody.” This type of child custody gives the child periods of living with each parent, so that the child has frequent and continuous contact with both parents.

Judges in the Commonwealth determine what is in the best interest of the child when they make decisions about custody or parenting time. The court will evaluate: the child’s well-being; how the child is doing in school and in the community; the child’s relationship with the parents and other members of the family; the parents’ history of abuse, drug use, or abandonment; whether one parent has been a primary caregiver in the past; and the child’s preference, depending on the age and maturity of the child.

Applying the laws to the facts above, the father may argue that his son’s move to Rhode Island would be burdensome on him and his rights to parental visitation as the non-custodial parent. Massachusetts courts recognize the adverse effect of the elimination or curtailment of the child’s association with the non-custodial parent. However, the court would likely still hold that the father’s right to see his son with an “alternative visitation arrangement” would not be affected. This is especially true if the parent’s schedule is suitable for the change.

Courts in Massachusetts make decisions such as these based upon the best interest of the child. For Corey mentioned above, the court might believe that his education opportunities and stability opportunities would be expanded with the move. The father’s reasonable parenting time would not need to change, but would only need to adapt in some way.

Parents with sole physical custody have the right to have the child at home with the parent. However, the other parent has the right to parenting time, so long as this parenting time benefits the child as well. If both parents as described above had shared physical custody, then a court may hold that such a move would be detrimental to Corey.

If you have any questions about issues involved in family law, child law, child custody law, or other issues, you should contact a competent family law attorney licensed to practice law in the Commonwealth of Massachusetts. Our experienced professionals may be able to work on behalf of you. Please contact our offices at your earliest convenience by phone at (866) 995-6663 or complete a contact form on our website. We will return your inquiry with prompt attention.

Testimony in Care and Protection Cases: New Massachusetts Case Law

In care and protection cases, important pieces of evidence are introduced in order for the court to decide issues of custody and visitation. One example, which serves to be significant evidence in care and protection cases, deals with the testimony, notes, and assessment of the social worker who is assigned to the case.

That testimony was at the heart of a recent case decided by the Massachusetts Appeals Court. In the case, Adoption of Luc, a birth mother’s parental rights were terminated by the Juvenile Court. At trial, the social worker who was assigned to the case testified on direct examination. The trial was then continued for several months. Before the trial resumed, and before the mother may have had the chance to cross-examine the social worker, the social worker died.

The trial judge struck and excluded the social worker’s testimony, but he allowed into evidence the dictation notes, reports, and assessments of the social worker, subject to some limitations and to rebuttal. The social worker’s supervisor testified in his stead, and she was allowed to summarize some of the contents of his reports. It should be noted that the judge only allowed in statements of fact and excluded any statements of opinion or impressions.

On appeal, the birth mother claimed that the evidence was admitted in error; that the documents were hearsay which should have been excluded by the trial judge; and that she was unduly prejudiced by their admission, as she was unable to cross-examine the author of the documents due to his death.

The Appeals Court disagreed, holding that the reports and assessments documents were widely recognized to be admissible under the public documents exception to the hearsay rule, while the dictation notes, which made up the basis for those reports, were admissible as declarations of a deceased person.

“The underlying reports were prepared by numerous professionals who also have an obligation to make truthful and accurate reports to the department ‘as a matter of duty and routine,’” the Court stated. “Any prejudice stemming from the factual observations of the service providers is found not in the summary prepared by the department social worker, but in the observations of the service providers themselves. This second-level hearsay may be rebutted by subpoenaing the source.”

Moreover, the Court noted that the mother herself did not dispute some of the findings of the social worker which were introduced, such as the fact that she failed to attend her Alcoholics Anonymous meetings and left the child alone with her brother, who recently had been arrested for sexual assault. With the evidence properly admitted, the Court held that the trial judge properly found that parental rights of the birth mother should be terminated. “The mother’s long-term history of mental illness, sporadically treated, her reliance on drugs and alcohol to self-medicate, her positive urine screens during the pendency of the case, her noncompliance with service plans, and her inability to attend to Luc, coupled with the systematic neglect of her six older children due to the same untreated mental health and substance abuse issues, ‘proved parental unfitness by clear and convincing evidence[,]’” the Court held.

If you have any questions about divorce, custody, or family law issues, you may schedule a free consultation with our experienced attorneys. Call (866) 995-6663 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.

Subject Matter Jurisdiction Over Protective Orders: New Massachusetts Case Law

Does the District Court have subject matter jurisdiction over the issuance of protective orders, particularly where they are issued ex parte, meaning without the defendant present in court? This was a question posed in a recent case of the Massachusetts Appeals Court.

A protective order, sometimes also referred to as a restraining order, serves to protect a victim of domestic abuse which is perpetrated by a member or former member of the victim’s household. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is or was dating. Subject matter jurisdiction refers to the power of the court to decide a certain matter—essentially, the power of the court over the type of case or controversy presented.

In the case, V.M. v. R.B., the plaintiff filed for a protective order against the defendant ex parte, meaning the defendant was not present at the hearing on the matter. Typically, where an ex parte protective order is issued under Massachusetts General Laws, chapter 209A, the defendant against whom the order is issued may challenge the order at the ensuing hearing after notice, and not by an appeal to an appellate court. In this case, however, the defendant appealed. He argued that the plaintiff failed to present sufficient evidence of a substantive dating relationship at the ex parte hearing, and because of this, the District Court did not have requisite subject matter jurisdiction to hold the hearing after notice.

At the ex parte hearing, the plaintiff presented an affidavit, claiming that the defendant threatened her through text messages, phone calls, and in person. On her Complaint for Protection from Abuse form, she checked the box indicating that she and the defendant “are or were in a dating or engagement relationship.” Her affidavit did not describe the nature of the parties’ relationship, but she testified at the ex parte hearing that they were in an exclusive dating relationship.

The judge entered an order prohibiting the defendant from abusing or contacting the plaintiff and 978requiring him to stay away from her. Nine days later, both parties appeared at a hearing, where the defendant filed a motion to vacate the restraining order and expunge the record at the hearing after notice, arguing that the judge lacked jurisdiction to extend the order. The judge extended the order for six months.

On appeal, the Massachusetts Appeals Court held that the existence of a substantive dating relationship is an element of a claim for a protective order, and not a prerequisite for subject matter jurisdiction. “The elements that the plaintiff must establish to obtain relief are not equivalent to the “nature” or “genre” of the case, which determines subject matter jurisdiction,” the Court noted. The Court explained that it is well-established that the Legislature has unequivocally given the District Court, the Boston Municipal Court and the Probate and Family Court jurisdiction over cases involving a protective order under chapter 209A. “[A] plaintiff’s failure to establish a substantive dating relationship at the ex parte hearing would not deprive the court of jurisdiction,” the Court concluded, dismissing the defendant’s appeal as moot.

If you need assistance with a restraining order or have any questions about divorce or family law issues, you may schedule a free consultation with our experienced attorneys. Call (866) 995-6663 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.

Marijuana and Families: how does this roll out in Massachusetts?

Now that recreational marijuana is legal in Massachusetts, a burning question exists: how does use of marijuana affect custody issues? If one spouse uses marijuana during a divorce, for example, how does the Massachusetts Probate and Family Court determine child custody?

Picture this fictional scenario: Cindy and Peter seek a divorce. They have one child named Kevin. Cindy is a great mother. She also smokes “pot”. Her recreational use of marijuana occurs about once or twice per week. Peter does not use marijuana. During the divorce, both parties want to obtain custody of Kevin.

Child custody issues are determined with one objective: the best interests of the child. The Massachusetts Probate and Family Court will make child custody determinations based on what is best for the child, which may include the actions or inactions performed by either or both parents. This determination may involve concerns about a parent’s recreational or medical marijuana use. Massachusetts judges may consider the frequency of the use, the child’s age, whether the child is susceptible to using the drugs, and whether the parent uses the drug in the presence of the child. Although some may view marijuana in a similar light as alcohol, others may hold strong a bias against marijuana. It is important to note that marijuana is not legal at the federal level.

Using the above scenario with Cindy, a Massachusetts judge has substantial discretion to determine the custody of Kevin. A judge could determine that her use once or twice per week is frequent and not best for Kevin. If Peter’s attorneys threaten to use Cindy’s use against her potential custody of Kevin, the attorneys could damage Cindy’s change of having custody or visitation of her son.

Suppose instead of her using recreational marijuana, Cindy instead used marijuana for a medical purpose. Would her medical use of the drug negate any argument made my Peter’s attorneys that she is not fit to have custody of Kevin? Of course, this depends, but the general answer is no. A Massachusetts judge could still decide that Cindy’s use of marijuana, regardless of recreational or medical consideration, is not in the best interest of Kevin. The best interests of Kevin are the most important determination for child custody decisions. A court does not want to award custody to a parent who could possibly put Kevin in some kind of danger. Imagine, for instance, that Kevin was diagnosed with severe asthma and that Cindy’s use of marijuana harmed Kevin or could harm Kevin as second or third-hand smoke—in that case, Cindy’s use of the substance would not be in the best interest of Kevin. Imagine instead, however, that Cindy used marijuana in a different form than smoking the substance, perhaps instead as a tea. That ingested form would not be as harmful to Kevin. These factors would all be considered and determinations made by a judge in Massachusetts.

Some may want to know: Would a Massachusetts judge award custody to a parent who was a seller or dealer of drugs? It is highly unlikely that a parent who sells marijuana as a side business would receive custody of her child, though there may be some exceptions, such as the cultivation or sale of hemp-based products or CBD oil. (These products do not contain the THC that makes someone high, so as to impact the parent’s capacity around his or her child.) Even in these circumstances, a Massachusetts judge has the final determination as to which parent is the custodial parent and which parent is the non-custodial parent. Marijuana may or may not be a large factor.

Another issue that may come up in child custody disputes is a parent’s prior use of marijuana. For example, suppose that Cindy as mentioned above had used marijuana years prior to the divorce. Would her prior use be a factor in the child custody decision? Most likely not, so long as the prior use does not affect the best interests of Kevin. Courts ultimately want children to be with parents who will make the best decisions for the children, and will likely not use past marijuana use against the parent, absent other issues.

If you have any questions about issues involved in family law, child law, child custody law, or other issues, you should contact a competent family law attorney licensed to practice law in the Commonwealth of Massachusetts. Our experienced professionals may be able to work on behalf of you. Please contact our offices at your earliest convenience by phone at (866) 995-663 or complete a contact form on our website. We will return your inquiry with prompt attention.