Visitation Options in Cases of Domestic Violence

Matt and Mary are going through a divorce. Matt alleges that during the marriage, Mary had engaged in a repeated pattern of physical and verbal abuse toward him. The couple had two children together, and the children live with Matt. Both parties want to know whether Mary may have visitation rights with the children.

In other words, the issue is as follows: would a Massachusetts judge allow the person with a history of physical and verbal abuse to have visitation with his or her children?

In Massachusetts, the rights of the parents to have custody of their minor children are generally equal.[1] Courts are concerned with the happiness and welfare of the child, including understanding the ways in which the child’s present or past living conditions affect the child’s physical, mental, moral, or emotional health. Id.

This right is not all-encompassing, however. Massachusetts courts may require that a parent have supervised visitation with children. Supervised visitation means that a “third party is present during the visits to ensure that the child is safe and that the visiting parent acts appropriately.”[2] There are many instances where supervised visitation is appropriate, including “when the visiting parent has a history of abuse toward that child or another child” or “when the visiting parent has a history of abuse toward the other parent.”[3]

As another consideration, an abused parent may continue to suffer abuse by the other parent. In this circumstance, the victim may obtain a restraining order under chapter 209A of the Massachusetts General Laws.[4] A 209A order requests that a Massachusetts judge order that the victim be given custody of the children, but this is rebuttable.

Moreover, the Supreme Judicial Court has held that “where there has been domestic violence between parties, judges must consider the effects that this violence has had on the child before making a decision about custody” and that physical violence is a violation of a basic human right, that is, to live in physical security.[5]

If a parent with custody of children believes that the children are at risk of abuse during visitation, the parent with custody may petition the court to end the visits between the children and the abuser and demonstrate that the visits are not in the best interest of the children.[6] If the parent with custody is at risk of harm, but the children are safe, the parent with custody may seek an order for a supervised exchange of the children.[7]

If you or your child(ren) are in serious or immediate physical danger, you should contact emergency personnel. You may wish to speak with an attorney with competence in this area of the law, and you may schedule a free consultation with our firm. Family law, domestic violence law, intimate partner violence law, and child law are intricate facets of the legal system and your family dynamics. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

[1] Mass. Gen. Laws. ch. 208 § 31

[2] Family Law Advocacy for Low and Moderate Income Litigants, 2nd Edition, 2008 >https://www.masslegalservices.org/system/files/library/Chapter+09+Final.pdf<

[3] Id.

[4] Id. at 249

[5] Id. at 254 (citing to Custody of Vaughn, 422 Mass. 590, 595 (1996))

[6] Family Law Advocacy for Low and Moderate Income Litigants, 2nd Edition, 2008 >https://www.masslegalservices.org/system/files/library/Chapter+09+Final.pdf< (citing to Donnelly v. Donnelly, 4 Mass. App. Ct. 162 (1976))

[7] Id.

Can You Appeal a Temporary Order During Divorce?

If you have issues in your case that require an order sooner than later, filing a motion for temporary orders and having it heard by the judge may be the solution. While trial in a divorce case doesn’t ordinarily occur until the case has been going on for 12 to 15 months, you can get into court for temporary orders in the first few months. It typically makes the most sense to ask for temporary orders in cases with custody and support issues, when real estate mush be sold, or when there’s a need for an order for one party to vacate the marital home. But, what to do if the judge rules incorrectly at the temporary order hearing?

Joe and Jane are getting divorced. During the proceedings, the judge issued a couple of temporary orders with which the parties disagreed. Joe took exception to the probate judge’s temporary abuse prevention order against him. Likewise, Sam objected to the probate judge’s allowance of Cindy’s motion that he vacate the marital home during their divorce proceedings.

Are temporary orders appealable before the parties are granted a final judgment of divorce?

Both the Appeals Court and Supreme Judicial Court may review orders by the Probate and Family Court. The appellate process is costly, complex and time-consuming, so alternatives such as asking the probate judge to reconsider an order or seeking a modification of an order should be initial considerations.

A spouse aggrieved by a probate court order may appeal the order to the Appeals Court or SJC within 30 days of its entry.[1] Interim or temporary decisions by a probate court judge are called “interlocutory orders” and do not constitute a final resolution of the parties’ divorce proceedings. Under Massachusetts law, a party aggrieved by an interlocutory order of a probate court judge may seek relief from the order within 30 days of its entry before a single justice of the appellate court.[2] Further appeal of a single justice’s ruling may be sought before the full Appeals Court or the Supreme Judicial Court.

Because interlocutory orders can be modified during the pendency of a divorce case, appellate courts are hesitant to hear reviews of such orders. Motions for temporary support, orders to vacate the marital home and discovery-related rulings, consequently, are usually viewed as unappealable until a final judgment of divorce issues. Limiting appeals of temporary orders is justified, the Supreme Judicial Court has held, because it prevents a party from ongoing disruption of proceedings through appellate review of issues that prove unimportant in the long run.[3] Interlocutory judgments not appealed from are open to revision on appeals from final judgments only if the Appeals Court of Supreme Judicial Court deem the final judgments were erroneously affected by the interim decrees.[4]

A party requesting an appellate court to review an interlocutory order must demonstrate that the consequences of applying the order would be harmful and could not be remedied when the proceedings are over or through a regular appeal.[5] This is referred to as the present execution doctrine.

Appellate courts hearing interlocutory order appeals do so without the benefit of the record of lower court proceedings, so the appellant petitioning for review must provide:

  • a request for review giving the date and nature of the order;
  • a statement of issues;
  • a statement of relief requested; and
  • a copy of the order at issue.

Additionally, the petition to a single justice requires a maximum 15-page memorandum of law that includes portions of the records pinpointing the issues the petitioner wants the justice to review.

Want to speak with a divorce lawyer about your case? Schedule a free consultation with our office and you’ll learn how the law applies to your facts and circumstances. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

[1] M.G.L. c.215, §9.

[2] M.G.L. c. 231, §118.

[3] Borman v. Borman, 378 Mass. 775, 779 (1979).

[4] M.G.L. c.215, §14.

[5] Maddocks v. Ricker, 403 Mass. 592, 598 (1988); Metzler v. Lanoue, 62 Mas. App. Ct. 655 (2004).