If my spouse is abusive, will I get sole custody?

On Behalf of | Oct 28, 2020 | Uncategorized

Child custody disputes are never welcome for divorcing parents, but they can be a traumatic experience when domestic violence is a factor in the relationship. Massachusetts law requires that judges consider abuse when making custody decisions. 

Whether the other parent has abused you or your child, the law is in your favor. This does not categorically guarantee you custody, but it does make it much more likely that a judge will rule in your favor as long as there are no mitigating factors. 

An official record of abuse

If your spouse physically harmed you or your child, made you or your child fear physical harm, or coerced you to have sex, you can petition the court for a protective order directing the abuser to refrain from contacting you. Massachusetts calls this a 209A Abuse Prevention Order or a restraining order. 

Obtaining such an order can give you temporary custody, but it does not guarantee that you will get permanent sole custody. Courts must consider this abuse during your custody dispute, and this can certainly weight the decision in your favor. 

Having a protective order in place not only suggests that custody with the other parent may not be in the best interest of the child, but that co-parenting may be impossible. Additionally, Massachusetts courts typically assume that spousal abuse has a negative effect on children, regardless of whether the other parent harmed the child. 

No abuse on record

While it helps to have an official record of abuse, you do not have to have one to prove that the other parent abused you or your child. If you are in this situation, collect any evidence you have, including text messages and emails, photographs, medical records, and any other items to corroborate your claim. 

Abuse and custody

Judges retain the right to give custody to an abusive parent, but if a judge decides to do this, he or she will need to provide a clear reasoning for the decision. For example, if the abuse took place in the distant past and it appears that the other parent has reformed, a judge may still grant custody with an explanation. Similarly, if there were mitigating factors surrounding the violence or an indication that it was an isolated incident, a court may take this into account.