6 B.U. Pub. Int. L.J. 501 (1996-1997)
Protecting Children Exposed to Domestic Violence in Contested Custody and Visitation Litigation

handle is hein.journals/bupi6 and id is 511 raw text is: COMMENTARIES
Domestic violence is detrimental to children. Thus, courts should consider it
as evidence of parental unfitness or misconduct, both of which courts weigh
heavily in determining what custody and visitation arrangements are in the chil-
dren's best interests. Likewise, given the staggering number of murders result-
ing from family violence2 the courts should fashion orders to ensure that no ad-
ditional violence or harm is inflicted on an abused parent or the parties'
Massachusetts law governing custody decisions and studies documenting the
profound impact of domestic violence on children arguably provide a basis for a
rebuttable presumption against awarding child custody to an abusive parent.
Under Massachusetts law, the rights of both parents to have custody of their
children are equal only in the absence of misconduct.'3 Moreover, Massachu-
setts law requires that the court consider whether the child's present or past liv-
ing conditions adversely affect his physical, mental, moral, or emotional
health.'4 Furthermore, Massachusetts law offers judges making temporary orders
for shared legal custody guidance as to what might constitute misconduct or
I This article is part of the continuing efforts of the Cambridge and Somerville Legal
Services (CASLS) Battered Women's Legal Assistance Project to educate the bar, the
judiciary and the public about the impact of domestic violence on children and the need
for a rebuttable presumption against orders for care and custody of children to abusers.
Attorneys Pauline Quirion, Judith Lennett, Kristin Lund and Chanda Tuck contributed to
this overview of literature and arguments in favor of such a presumption. CASLS also
acknowledges and thanks Amy Offenberg for her editorial and research assistance.
2 Typically, probate and family courts enter orders for child custody or visitation after
parents separate. This is a particularly dangerous time because abusers often escalate the
violence to coerce victims into reconciliation. In addition, battered women are most likely
to be murdered by abusers after they leave the relationship or report the abuse. See Bar-
bara J. Hart, State Codes on Domestic Violence: Analysis, Commentary, and Recommen-
dations, 43 Juv. & FAM. Cr. J. 29, 34 (1992), and studies cited therein.
I MAss. GEN. LAWS ch. 208,  31 (1987 & Supp. 1996).

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