Massachusetts General Laws
Chapter 209 - Husband and Wife
Section 38 - Visitation and Custody Orders; Consideration of Abuse Toward Parent or Child; Best Interest of Child

Section 38. In issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child. For the purposes of this section, ''abuse'' shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury. ''Serious incident of abuse'' shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing serious bodily injury; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress. For purposes of this section, ''bodily injury'' and ''serious bodily injury'' shall have the same meanings as provided in section 13K of chapter 265.
A probate and family court's finding, by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody, or shared physical custody with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child. For the purposes of this section, an ''abusive parent'' shall mean a parent who has committed a pattern of abuse or a serious incident of abuse.
For the purposes of this section, the issuance of an order or orders under chapter 209A shall not in and of itself constitute a pattern or serious incident of abuse; nor shall an order or orders entered ex parte under said chapter 209A be admissible to show whether a pattern or serious incident of abuse has in fact occurred; provided, however, that an order or orders entered ex parte under said chapter 209A may be admissible for other purposes as the court may determine, other than showing whether a pattern or serious incident of abuse has in fact occurred; provided further, that the underlying facts upon which an order or orders under said chapter 209A was based may also form the basis for a finding by the probate and family court that a pattern or serious incident of abuse has occurred.
If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child's best interests and provides for the safety and well-being of the child.
If ordering visitation to the abusive parent, the court shall provide for the safety and well-being of the child and the safety of the abused parent. The court may consider:
(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;
(b) ordering visitation supervised by an appropriate third party, visitation center or agency;
(c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer's treatment program as a condition of visitation;
(d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;
(e) ordering the abusive parent to pay the costs of supervised visitation;
(f) prohibiting overnight visitation;
(g) requiring a bond from the abusive parent for the return and safety of the child;
(h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and
(i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent.
Nothing in this section shall be construed to affect the right of the parties to a hearing under the rules of domestic relations procedure or to affect the discretion of the probate and family court in the conduct of such hearing.

Structure Massachusetts General Laws

Massachusetts General Laws

Part II - Real and Personal Property and Domestic Relations

Title III - Domestic Relations

Chapter 209 - Husband and Wife

Section 1 - Married Persons; Separate Property and Property Held as Tenants by Entirety; Liability for Debts

Section 1a - Tenants by Entirety Under Older Deed; Electing Treatment of Tenancy

Section 2 - Married Woman; Power to Contract

Section 3 - Transfers Between Husband and Wife

Section 4 - Married Woman; Work and Labor; Presumption

Section 5 - Married Woman; Acting as Fiduciary

Section 6 - Married Woman; Power to Sue and Be Sued

Section 7 - Married Woman; Liabilities

Section 8 - Husband; Liability for Wife's Debts

Section 9 - Husband; Liability on Contracts Concerning Separate Property of Wife

Section 13 - Marriage Settlements

Section 14 - Disability of Husband or Wife Provisions; Release of Homestead by Wife of Ward

Section 15 - Disability of Husband or Wife Provisions; Wife of Ward; Joinder With Guardian or Conservator; Sale of Realty

Section 16 - Disability of Husband or Wife Provisions; Disposition of Proceeds

Section 17 - Disability of Husband or Wife Provisions; Partition; Joinder of Husband or Wife of Ward With Guardian or Conservator

Section 18 - Mentally Ill Persons; Conveyance or Mortgage of Real Estate; Release of Homestead

Section 21 - Mentally Ill Spouse; Reservation of Portion of Proceeds Upon Release of Homestead

Section 24 - Disability of Husband or Wife Provisions; Venue

Section 25 - Antenuptial Settlements; Force and Effect

Section 26 - Antenuptial Settlements; Record; Description of Property

Section 28 - Rights of Married Person Coming From Another State or Country

Section 29 - Property Rights Acquired in Other States; Effect of Residence in This Commonwealth

Section 30 - Married Person Abandoned by Spouse; Sale or Conveyance; Notice to Opposing Absent Spouse; Jurisdiction of Court; Proof of Abandonment; Retransfer to Opposing Absent Party

Section 31 - Non-Resident Married Woman Abandoned by Husband; Conveyance of Realty

Section 32 - Married Person Abandoned by Spouse; Order Prohibiting Restraint of Personal Liberty of Spouse; Support, Custody and Maintenance Orders; Information Provided to Complainant; Domestic Violence Record Search; Investigations; Factors Determi...

Section 32d - Judgment for Separate Support; Conveyance of Real Property; Enforcement; Vesting of Title

Section 32e - Judgment or Order of Support; Enforcement

Section 32f - Married Persons Living Apart; Actions for Support

Section 33 - Separate Support or Maintenance; Attachment of Defendant's Property and Trustee Process

Section 34 - Married Person Abandoned by Spouse; Venue

Section 36 - Married Person Abandoned by Spouse; Spouse Living Apart; Conveyance and Will

Section 37 - Support Orders for Children of Separated Parents; Child Support Guidelines; Modification of Orders; Provisions for Education and Health Insurance; Parents Convicted of First Degree Murder

Section 38 - Visitation and Custody Orders; Consideration of Abuse Toward Parent or Child; Best Interest of Child