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.