Massachusetts child custody cases are decided based on the “best interests of the child” standard. This standard takes many different factors into consideration. Under Massachusetts General Laws, chapter 208, section 31A, in a proceeding granting temporary or permanent custody, a judge must consider evidence of past abuse or present abuse toward a parent or child as one of those factors. In order to receive custody, the abusive party essentially needs to overcome a presumption that it is not in the best interest of a child to be placed with an abusive parent.

But is there a point at which “past abuse” no longer needs to be considered in a child custody analysis? For example, let’s say that past abuse was considered in the original child custody matter, and now the parties are seeking a modification of the custody order. At that point, must the judge continue to consider all “past and present abuse” in his or her determination?


Recent Case Law: Malachi M. v. Quintina Q.


A recent Massachusetts appellate case, Malachi M. v. Quintina Q., addresses this exact issue. In the case, the parties divorced in 2015. They were granted shared legal and physical custody of their minor child. During the divorce proceeding, a guardian ad litem (GAL) was appointed for fact-finding purposes. The GAL found evidence that the father was violent with the mother three or four times per year. This included one particularly physical incident. The GAL also found that the mother was physical towards the father a handful of times.

The Trial Court

The judge at the divorce trial found that both parties engaged in some physical abuse towards each other. The trial judge ordered shared custody. A year later, the father sought a modification of the custody order. He claimed that the mother was seeking to alienate the child from him. The mother had brought up several new allegations of abuse by the father. These included one allegation of physical violence in 2013. She also claimed that the child showed signs of regression after visiting with the father. Unbeknownst to the father, the mother took the child to be tested for sexually transmitted diseases after she visited with the father.

The modification judge appointed a new GAL to serve as a fact-finder. The judge also made it clear that she would not consider any pre-divorce incidents that occurred, even those dealing with abuse. She did not allow testimony that provided more than cursory reference to pre-divorce events. In her order, the modification judge found that both parties engaged in abusive conduct. The modification judge also found the father had received anger management counseling, that the mother’s allegations of the father abusing the child were baseless, and that the father cared for the child properly.

The modification judge granted sole custody to the father. Subsequently, the mother appealed. The Massachusetts Supreme Judicial Court granted her application for direct appellate review.

On Appeal

The high court held that the trial judge needed to consider the issue of all past and present domestic abuse, clarifying the statute moving forward in future cases. In this case, the high court held that the trial judge properly considered all of the abuse that occurred. Furthermore, she was satisfied that the father overcame the presumption that it wasn’t in the child’s best interest to be placed with him.

“We hold that pursuant to G. L. c. 208, § 31A, the judge at a modification proceeding must consider evidence of both past and present abuse, including evidence of domestic abuse that occurred prior to the entry of the divorce judgment, and must address the applicability of the rebuttable presumption, even in the absence of evidence of abuse occurring after the divorce judgment,” the Appeals Court held. “Although we hold that the judge in the present case properly considered application of the rebuttable presumption, moving forward, when parties present evidence of abuse, judges should explicitly state on the record that they have considered whether the parties have met the preponderance standard for the presumption to apply and, if so, whether the abusive parent has rebutted the presumption.” The Supreme Judicial Court allowed the father to retain custody.


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