Appeals Court Vacates Custody Award Due to Domestic Abuse Allegations

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In the recent unpublished Memorandum and Order Pursuant to Rule 1:28, Manning v. Manning, the Massachusetts Appeals Court overturned a custody judgment from the Probate and Family Court awarding a couple shared legal and physical custody of their two children due to the lower court judge’s failure to make required findings of fact regarding the wife’s allegations of domestic abuse by the husband. At the time of their divorce trial, the wife testified that her husband had abused her on numerous occasions during the marriage, including punching her, throwing objects at her, and grabbing her by the neck in front of their child. The trial judge credited the wife’s testimony, writing in the judgment that the husband “physically battered and assaulted the [w]ife throughout the entire tenure of the marriage.” Despite this finding, however, the judge ordered that the parties should have shared custody of their children, with each parent exercising parenting time for one week at a time.

On appeal, the wife argued that the judge erred in issuing the custody order because he had not made specific findings of fact regarding the impact of the domestic violence on the children. Specifically, M. G. L. 208, § 31A states that “A probate and family court’s finding . . . 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.” Further, §31A provides “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 . . . 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.” In Manning, although the judge found that a pattern of abuse occurred during the marriage, he failed to make the required factual findings regarding the effect of that domestic violence on the children. Accordingly, the Appeals Court vacated the custody order, holding that the trial judge had triggered the rebuttable presumption against shared custody when he found the wife’s claims of domestic abuse to be credible, and had thus erred by failing to make written findings explaining how the husband had rebutted that presumption such that a shared custody order was appropriate.


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