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S.P. v. B.D., 92 Mass.App.Ct. 1115 (2017) (Unpublished Disposition)

In S.P. v. B.D., the Appeals Court vacated a judgment between never-married parents, which granted the mother sole legal and physical custody of the parties’ two children and provided the father with six hours of supervised visitation per week, and remanded the case to the Probate and Family Court to make explicit findings of fact sufficient to satisfy the requirements of M.G.L. c. 209C, §10(e). M.G.L. c. 209C, §10(e) provides that the Court must, in issuing any temporary or permanent custody order over children born out of wedlock, “consider evidence of past or present abuse toward a parent or child” and, if the Court finds that a “pattern or serious incident of abuse has occurred,” to “enter written findings of fact as to the effects of the abuse on the child.” If the Court finds, by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred, there is 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. M.G.L. c. 209C, §10(e).

The trial judge in this matter credited the mother’s testimony regarding an incident in which the father “pinned” one of the children on the floor, making it difficult for the child to breathe, smacked the child under the chin causing her head to snap backward, and threw the child on the bed. The judge also noted that the father did “not believe that his behavior was abusive” and “has not acknowledged the effect of domestic violence on [the] children.”

Although the judge considered evidence of “past abuse,” it was unclear whether she found the father’s conduct to constitute a “serious incident of abuse” within the meaning of M.G.L. c. 209C, §10(e). Moreover, the judge never made a finding regarding the effect of the abuse on the children. The Appeals Court noted that “this is not a case in which we may conclude that the judge made implicit findings sufficient to satisfy the statute,” because “domestic violence is an issue too fundamental and frequently recurring to be dealt with only by implication.” Custody of Vaughn, 422 Mass. 590, 599 (1996).

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