Is a Court Required to Consider Past Abuse in a Child Custody Modification Action?

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Recently in Malachi M. v. Quintina Q., the SJC held that:

[P]ursuant 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.

In August 2015, the divorce Judgment specified that the parties would share legal and physical custody. The guardian ad litem's report at the time mentioned allegations of abuse by both parties, and as part of the parties' divorce Judgment, the court found "that the parties have both engaged in physical assaults upon the other during the early part of the marriage which culminated in a particularly egregious occurrence of father assaulting mother in Florida in 2011. Following that incident, father engaged in anger management counseling at his own initiative and there have been no further incidents."

Father sought to modify the divorce Judgment in May 2016 based on a material change in circumstances. Mother alleged that father had recently admitted to "newly revealed" abuse. Another guardian ad litem was appointed and the report was an uncontested trial exhibit. The judge also reviewed evidence from the divorce trial, including the original guardian ad litem report, as well as evidence related to an alleged incident of abuse by father in 2013 and allegations related to a 209A restraining order; the parties also testified at the modification trial. The judge limited the scope of the trial testimony in general from August 15, 2015 to present.

The modification Judgment discussed mother's allegations of abuse but awarded sole legal custody to father and kept physical custody shared. Mother appealed, arguing the that court failed to consider the incidents of abuse prior to the divorce Judgment and did not apply the rebuttable presumption outlined in G.L. c. 208, § 31A, which provides that awarding custody to an abusive parent is not in the child's best interest. Father argued that the court was not required or permitted to "retry domestic violence issues that were subsumed in the underlying original custody judgment," res judicata applied to the parties' Judgment unless there was a material change in circumstances, and application of the rebuttable presumption required new allegations of abuse.

The SJC determined that even in modification actions, where pursuant to G.L. c. 208, § 28 the court must assess whether there has been a material change in circumstances since the divorce, a judge must consider in the best interest of the child analysis past or present abuse, which is "expressly labeled in § 31A as 'a factor contrary to the best interest of the child.'" The Court further determined that a judge must also consider the rebuttable presumption even if no incidents of abuse occurred following the divorce.

Despite the limitation on trial testimony, the SJC affirmed the modification Judgment because it concluded that the judge had considered evidence of past and present abuse allegations and applied the presumption, and there was sufficient evidence to establish a material change in circumstances.

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