DOMESTIC VIOLENCE

T.D v. J.O. (SJC–12674)

How does the Court evaluate the role of domestic violence in custody disputes?

The Supreme Judicial Court (“SJC”) of Massachusetts recently heard arguments in a case called T.D. v. J.O. (SJC–12674) argued September 9, 2019, still under advisement. The issue of the case is whether or not the court can consider prior acts of domestic violence in evaluating later custody decisions, regardless of whether the issue was raised at the time of the divorce and whether the statutory presumption regarding custody to an abusive parent is applicable. In T.D., the parties were divorced in 2015. During the divorce, the judge held that both parties engaged in physical assaults upon the other, concluding with a particularly violent attack on the mother by the father in 2011. Less than a year after the divorce judgment, the father filed a Complaint for Modification seeking sole legal custody of the children after the child came home with a bruised cheek. In the hearing for Modification, the judge would not consider abuse that happened prior to the judgment of divorce, even though it would have established a pattern of abuse. Instead, the father was awarded legal custody. The Judge’s rationale was that domestic violence in this case had been considered during the divorce, and modifications of the Divorce Judgment should only consider acts subsequent to the Divorce.

At this juncture, we are still waiting for the SJC’s opinion. The issue of whether or not a court should consider prior acts of domestic violence during a marriage is one that may impact many cases. The difficulty is that some judges believe prior acts of domestic violence should not be considered if the issue has been previously litigated, while others believe that evidence of the prior acts shows a history of violence.

Domestic violence involves a pattern of abusive and/or harmful acts by an abuser against a victim. All to often, the violence does not end after the divorce is finalized. There are many forms of abuse too involved for this short article [1]. However, this case has the ability to create a great deal of guidance for courts and practitioners to better assess the impact of prior acts of domestic violence in subsequent modification cases.

[1] See several “warning signs” of domestic violence compiled by the National Coalition of Domestic Violence. See also https://www.mass.gov/service-details/domestic-violence-programs for Massachusetts based programs.